[Recorded by Electronic Apparatus]
Wednesday, November 6, 1996
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[English]
The Chair: Bill C-205 is an act to amend the Criminal Code and the Copyright Act concerning profit from authorship respecting a crime. Our witness is Mr. Wappel, who is the sponsor of the private member's bill and a member of parliament. With him is Mr. Frank Brown, who has been a technical adviser on the bill, and John Macera of the law firm of Macera & Jarzyna, who is a specialist in copyright law.
Mr. Wappel.
Mr. Tom Wappel, MP (Scarborough West): Thank you, Madam Chair. It's always delightful to be back at the committee. I appreciate you introducing my colleagues who are accompanying me today. Just as a small anecdote, they are long-time friends and colleagues going back 25 years to law school days.
On Bill C-205, imagine a country where serious killers, child rapists, murderers and violent criminals can, from their jail cells, write the stories of their crimes, sell the books to the citizens of the country within which they wreaked such havoc, and bank the money anywhere in the world.
Imagine a country where these criminals can collaborate with movie producers, sell the stories of their crimes, be technical advisers to the creation of the movies of their infamous activities, and bank the ill-gotten gains anywhere in the world. It's sad but true that that country is our country, Canada.
I've distributed a copy of my remarks, members of the committee. If you think I'm overdramatizing, please have a look at the attachment to my remarks and you will see that the Consumer and Corporate Affairs department of our government has issued copyrights to serial killer Clifford Robert Olson for various videos he has done entitled Motivational Sexual Homicide Patterns of Serial, Child Killer - Clifford Robert Olson, and for a so-called literary work Inside the Mind of a Serial Killer - A Profile.
These are actual copyrights that have been issued to a mass murderer in our country. This situation exists in our country where there is no prohibition to prevent a criminal from telling and selling the story of his or her crime, despite the fact that the common law of our country has held for centuries that a criminal may not profit from his or her crime. That's why a person who murders his or her spouse cannot collect the victim's life insurance, even if that person is the named beneficiary. But if a murderer writes a book about committing the crime and makes a profit from its sale, surely that is as much profiting from the crime as collecting the insurance. Yet there's no prohibition of this in Canadian law.
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A few might argue that these criminals have a right under our charter to sell their stories in whatever form and pocket the profits. The vast majority of Canadians, myself included, do not share this view. How can we prevent such a perversion of the most fundamental principles of crime and punishment, indeed of justice?
My private member's bill is an attempt to ensure that no criminal may profit from writing about or selling the story of his or her sordid activities.
The idea was born in the summer of 1993 when I read a news report that Karla Homolka was reported to be considering selling her story for a profit, and if Homolka, why not Paul Bernardo himself, Clifford Olson, Denis Lortie, or the torturers-murderers of Toronto shoe-shine boy Emmanuel Jack, just to name a few of the more notorious cases in our country?
My bill is based on two principles. First, no criminal should ever profit from telling the story of his crimes. Second - this is important and I'd like to underscore this - criminals need not be prevented from telling their stories, provided they do not profit from the telling.
So the bill in a nutshell - and it's very short, as you've seen if you've looked at it - includes in the Criminal Code definition of proceeds of crime:
- any profit or benefit gained by a person, or his family, from the creation of a work based on the
indictable offence for which the person was convicted.
But this alone does not help us if the criminal sells his or her story to a movie producer in the U.S., for example, who deposits the criminal's payment into a Swiss bank account.
In order to capture this possibility, my bill amends the Copyright Act - also clearly federal jurisdiction under the Constitution - as well as the Criminal Code to provide, first, that the sentence for an indictable offence is deemed to include an order that any work based on the offence is subject to a new section in the Copyright Act; and second, to provide in the new section that in such a work, the copyright that would otherwise belong to the convicted person becomes and remains the property of the Crown forever.
This would permit Canada to bring an action in any country of the world that is a signatory to the Berne Copyright Convention, which is most of the industrialized countries, to enforce its rights, including seizure of funds paid to the criminal or injunctions to halt the sale of books, movies, videos, and the like.
I want to repeat that my bill would not prevent a criminal from creating a work or collaborating on a work based on the offence, but it would prevent the criminal from profiting from such creation.
This bill is supported by many non-partisan organizations, including but not limited to the Canadian Police Association, the Canadian Resource Centre for Victims of Crime, Families Against Crime Today, End Violence Against Children, Citizens United for Safety and Justice, Victims For Justice, Emotional Support for Victims For Violence and their Family, CAVEAT - which all members of the committee are familiar with - Victims For Justice, and Canadians Taking Action Against Violence.
The bill has had three hours of debate in the House. So far, 23 members spoke at second reading, with 21 of those members speaking in favour and 2 against. The bill passed second reading on September 24, 1996, virtually unanimously.
Incidentally, I would like to parenthetically thank the committee for scheduling what I consider to be a very quick opportunity for me to appear before the committee to deal with the bill. I appreciate the efforts the steering committee and the members of the committee took to expedite us discussing this bill so quickly.
Five arguments were raised at the time that the bill was voted on at second reading, and I want to deal with each of those five arguments directly and specifically.
First, it was suggested that the amendments that specifically expand the definition of proceeds of crime ``stretch'' the criminal law powers of the government. It is argued that this is because ``proceeds of crime'' is expanded to include moneys not derived directly or indirectly from the commission of a crime but derived from a lawful activity, i.e., writing a book.
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My response is that the commission of the crime is a condition precedent to the writing of the book about the crime. Without the crime there can be no book about the crime. Thus in my view the link is direct, and if not direct, then certainly indirect.
Similarly, there is no direct link between purchasing life insurance on a loved one, which is a legal contractual activity, killing that loved one - or I guess unloved one - and then collecting the proceeds from killing that person. Yet the common law will not permit the criminal to collect that insurance, even though there's no direct link between the act of murder and the insurance policy.
Likewise, purchasing a car, a boat, jewellery, or artwork, for example, are all legal activities, but if they are purchased with money directly or indirectly linked to a crime they can be confiscated.
Thus as I see the government's argument, if a hired assassin buys a car with the payment for his crime, his car can be seized as proceeds of crime, but if he writes a book about his assassination and makes money on it, then the law cannot seize this money, because it is allegedly stretching the powers of the criminal law. I would suggest this flies in the face of common sense.
In any event, in this bill I'm not asking for a theoretical expansion of the definition of ``proceeds of crime'' contained in the Criminal Code. I'm adding a section to the Criminal Code definition of ``proceeds of crime'' that would deem this situation to be proceeds of crime. As we know, the Parliament of Canada can do anything it wants, provided it's in accordance with the laws of the land, including the charter.
Secondly, the government argues that my bill is extremely far-reaching because the proposals extend beyond the incarceration period. For example, the bill would provide that during his natural life an armed robber can never write a book about the armed robberies and that he has paid his debt to society because he has done his time in prison, and therefore somehow this bill is wrong in extending that prohibition beyond the incarceration period.
My answer is simple. The bill provides that as a mandatory part of the sentence imposed after conviction, any copyright in any work about the crime by the criminal will be subject to a new section 12.1 of the Copyright Act. And yes indeed, this would be for the life of the convict. But this is not at all different from subsection 100(1) of the Criminal Code, which currently exists and which permits a judge, at the time of sentence, to prohibit a person from owning firearms or explosives for life. The person may have done seven years for whatever he did, but he is prohibited for life from owning explosives or firearms. There is no difference intellectually or in law between that current situation and what I'm proposing.
Thirdly, it's argued that because the Minister of Justice is currently working with his provincial colleagues to do part of what my bill proposes - and I underscore ``part of what my bill proposes'' - somehow my bill should not proceed. I point out first that such talks have been going on for quite some time without concrete results. Secondly, and more importantly, even if the federal government and all ten provinces passed uniform laws, they will not stop a Canadian criminal from profiting from the telling or selling of the story of his crime outside Canada. We could still see the likes of Bernardo or Olson selling the rights to his story to a foreign movie producer, having the money deposited in a Swiss bank account, and spending it with impunity anywhere in the world except Canada. My bill will stop such an absurdity.
Fourthly, the government asserts that the bill creates a problem in international law. This assertion is made without substantiation and without reference to any particular section of any international law or international convention. I categorically reject this assertion, for the following reasons.
The articles of the Berne Convention in and of themselves are of no legal effect in Canada, but because our domestic law - and here I refer to the Copyright Act - is derived in part from these articles in the Berne Convention, the convention serves as an interpretive tool, not a binding tool, to domestic legislation.
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The word ``author'' is not defined in the Berne Convention, therefore it is up to domestic legislation to define. The domestic law of Canada, as well as other Berne signatory countries, provides for deemed authorship in others other than the actual author. These deeming provisions have not been opposed by the international community.
I want to cite specifically, Madam Chair, section 12 and subsection 13(3) of the Copyright Act, which are currently on the books.
Section 12 reads:
- Without prejudice to any rights or privileges of the Crown, where any work is, or has been,
prepared or published by or under the direction or control of Her Majesty or any government
department, the copyright in the work shall, subject to any agreement with the author, belong to
Her Majesty and in that case shall continue for a period of fifty years from the date of the first
publication of the work.
- Where the author of a work was in the employment of some other person under a contract of
service or apprenticeship and the work was made in the course of his employment by that
person, the person by whom the author was employed shall, in the absence of any agreement to
the contrary, be the first owner of the copyright....
The fundamental principle of the Berne Convention requires each member country to extend to authors and works of all other member countries - what? The same copyright protection as it does to its own nationals. It does not provide a uniform code or some set of principles, but rather it requires that the signatories give the same protection to foreigners as to nationals.
As I said before, the Berne Convention does not define ``author'', and it also doesn't define ``initial ownership''. Therefore it's up to member countries to define initial ownership according to domestic law, and that's exactly what my bill proposes to do.
In an article entitled ``Copyright in Foreign Works: Canada's International Obligations'', the author, David Vaver, points out that countries often allocate ownership to the employer using legal techniques that vary from vesting the copyright initially in the employer to creating an automatic assignment of rights from the author to the employer. I have just cited the section in our very own Copyright Act that does that.
Bill C-205 proposes to vest ownership of the work in Her Majesty in right of Canada. This is consistent with already established practices in member countries.
In her article entitled ``Ownership of Employment Creations'', L.E. Harris points out that many convention countries have employer ownership and there have been no complaints that employer ownership is against international obligations during the 62-year existence of such provisions.
Therefore, I ask, if the true author's work can and is deemed to be owned by the author's employer, how can we object that a criminal author's work about the crime is deemed to be owned by Her Majesty in right of Canada, particularly when such deemed ownership is made for public policy, public safety, and peace, order and good government reasons?
Finally, the government states that there is a charter risk associated with the proposed changes and that this risk should somehow disqualify Bill C-205 from becoming law. I ask respectfully that this committee categorically reject such a ridiculous notion.
All legislation we pass, and particularly criminal law legislation, as this committee knows, is at risk of a charter challenge. That's the nature of the beast. The Parliament of Canada has passed gun control legislation, knowing it was at risk of a charter challenge. Indeed that risk is now a reality as the law is being challenged. That risk did not stop us from passing the bill.
Parliament passed the Tobacco Products Control Act, knowing it was at risk of a charter challenge. Indeed, notwithstanding all the assurances of the Department of Justice that the bill was constitutional, the Supreme Court declared it unconstitutional. Parliament passed the bill despite the risk, and we're soon going to try it again because we know the principle is right.
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The Minister of Justice has proposed in Bill C-55 that people not charged with a crime, not convicted of a crime, but merely suspected of being at risk to commit a crime, can be subjected to electronic monitoring. If ever there was a charter risk associated with a proposed law, this is it, yet we proceed.
Remember, the criminal is not prevented in any way from writing a book, collaborating on a movie, or any other method of expressing himself. Bill C-205 only prohibits the criminal from profiting from that freedom to express oneself, and only in the limited circumstances when the freedom of expression concerns the very crime itself. In any event, even if there were a charter violation, I suggest that the Supreme Court would invoke section 1 of the charter to validate the law, as it reaffirms the centuries-old truism of our law that no criminal may profit from their crime.
Madam Chair, I urge the committee to proceed with the examination of Bill C-205, listen to the witnesses, consider reasoned amendments if any, reject unsubstantiated opposition, and report the bill to the House for third and final reading, ensuring that no one will ever make a dime from committing a crime.
Thank you. I'm ready for questions.
The Chair: Thank you.
Mr. Ramsay, you have ten minutes.
Mr. Ramsay (Crowfoot): I wish to thank Mr. Wappel and his colleagues for attending today and making this presentation to us. It seems rational and full of common sense to me, Mr. Wappel, and I think you have very adequately rebutted those five items of concern that were raised in the House at second reading. I support this bill, and I support what you have said here today.
I'd like to ask you this. Since you tabled this bill and since its second reading, is there any area that you feel an amendment could strengthen?
Mr. Wappel: No one has suggested to me an amendment of any kind to this bill, so I wouldn't be able to comment on that. I am not of the belief that this bill is necessarily perfect, and that's why I suggested that if there are some reasoned amendments, the committee would consider them. No one has actually given me an amendment so that I can make a comment.
Mr. Ramsay: I guess my question is this. Are there areas where this bill has been criticized or where you have had second thoughts about it, areas that would strengthen the bill by way of amendment?
Mr. Wappel: No.
Mr. Ramsay: I have no further questions, Madam Chair.
The Chair: Mr. Telegdi.
Mr. Telegdi (Waterloo): Thank you, Madam Chair.
I like and support the thrust of your private member's bill, particularly when you deal with people like Bernardo and Olson and so on. I guess I have some concern in a couple of areas, and I thought maybe you could help me with them, if there's a way of somehow amending the bill to look at those concerns.
I'm thinking about Roger Caron, who wrote Go Boy! and Bingo! and a number of other books. Do you see those kinds of book as those that this bill should apply to?
Mr. Wappel: I think the definition is clear - I certainly hope it's clear - as to what would be captured. It would be a work that, and I'm quoting directly:
- recounts or depicts the commission of an actual offence of which a person has been convicted or
that is based substantially on the commission of such an offence
- So if the work you cited was a description of the very crime for which the author was convicted,
then it would be captured by this bill.
Mr. Telegdi: I guess in that case the problem I have with that particular book is that it obviously mentions that along the way Roger Caron was a bank robber, and it mentions various robberies that he undertook, but most of the book deals with conditions and life in prison, or his previous life story and that particular situation.
I certainly would not have trouble dealing with the Bernardo case or the Olson case or any of those cases. There's a bit of irony in the whole thing. I'm just thinking of the O.J. Simpson trial. Everybody has written a book about it, be it the defence attorney or be it the prosecuting attorney or a host of freelance lawyers. I find the whole commercialization of a tragic situation quite offensive, and I'm not sure how to deal with that. I also certainly find the very thought of somebody like Simpson - who has committed an offence - personally profiting from it very objectionable, with the exception that he's being sued civilly at the present time. Hopefully, if he's convicted, whatever money or resources he has are going to quickly disappear.
Would there be a way of focusing more within the bill instead of casting the wide net? I would hate to see someone like Roger Caron not be able to write a book.
There's also the thought that people who are convicted of an offence should not be in a better position at some particular point in time because of their offence, and of course we have the situation where somebody who commits an offence - and this is the principle, and I hope you can help me with it - might go into detention facilities with no skills. But if they do take some training or what have you, when they come out they are employable.
I guess the principle is one of rehabilitation, and it's something that society obviously would benefit from. They would be able to be contributing members of this society and have jobs and what have you, and they would be able to support themselves. Clearly that's not some principle that you would be against.
How can we possibly make sure that the net is not so wide so that, first, we allow books like Go Boy!, but we do not allow books by Homolka or Bernardo. Quite frankly, whether they do it for profit or for free, it still is offensive to me. I think of Clifford Olson possibly doing a book, and some titles he suggests - it just offends every sensitivity I have on that particular issue.
I wonder if you could help me with that. Can we differentiate between the nature of the crimes?
Mr. Wappel: I'll try. Thank you for the question.
First of all, I don't think there's any way I would suggest that we not permit someone to express themselves. I think you were saying you thought it was offensive that Bernardo would write a book. We have a Charter of Rights and Freedoms in this country that allows for freedom of expression. From the point of view of freedom of expression, it would be very dangerous if we ever prevented people or ever tried to prevent people from expressing themselves.
The issue here, in my bill, is not that they cannot express themselves. The issue is that they cannot profit from expressing themselves, if expressing themselves means dealing with the very crime for which they were convicted.
So, for example, Mr. Simpson, if the crime were committed here, would obviously not be in the net, as you put it, because he was acquitted of the crime. Whether or not he is found to be civilly liable is not the issue, because with this bill you must be found guilty of the crime under the Criminal Code to be caught in the net.
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So let's look at who is caught in the net. First of all, you must be convicted of a crime under the Criminal Code. Secondly, you must be convicted of a crime that is an indictable offence in the Criminal Code. Thirdly, you have to write a book or sell your story for profit. That's when the net closes.
If you accept the principle that no criminal should make a dime from committing a crime, then it becomes very difficult to start piecing that principle off or shaving slivers off it here and there, because who's going to do that? How many slivers? And under what circumstances?
As for the book that you mentioned, for example, there's nothing in my bill that would prevent the gentleman from writing the book. There's nothing in my bill that would prevent the gentleman from winning an award for writing the book or from accepting an award for writing the book.
It would prevent him from accepting any money for writing the book, provided that the book was about the crimes for which he was convicted. If it was about somebody else's crimes, if it was about the depression era in Canada, if it was about Inuit hunters - you get my drift - he could make as much money as he wants. But if it's about the very crimes for which he was convicted, it seems to me there is something offensive in permitting someone to make money for telling about the crimes for which they were convicted and for which victims have been created in our country.
Mr. Telegdi: I wonder if you could -
Mr. Wappel: There's one other point, Mr. Telegdi, that has been brought to my attention. The words ``based substantially'' are in proposed paragraph 1(c), so I suppose one could argue - and this might be an amendment you might consider if you wish - for nailing it down specifically and saying that the work has to be based substantially upon the crime.
So in the instance you point out, if in a 400-page book there's passing reference to a crime committed by the author, the Crown or the courts may find on legitimate grounds that the book is not based substantially on the crime. Therefore the author would be permitted to keep the profits. That wording is already in that proposed section.
Mr. Telegdi: That helps me with that. So, if Svend Robinson - I'm not sure how he got arrested and went to jail for a week, or whether it was summary or indictable.
Mr. Wappel: I believe that was contempt of court and I don't think that's indictable.
Mr. Telegdi: So if he wrote a book about his political activities, this wouldn't have an impact on it.
Mr. Wappel: Some people might consider any book on political activities criminal.
Some hon. members: Oh, oh!
Mr. Telegdi: Be that as it may....
The Chair: Thank you, Mr. Telegdi.
Ms Clancy.
Ms Clancy (Halifax): Thank you very much.
Mr. Wappel, I wonder if you could expand a bit on your response to the justice department's claim that there's a charter risk associated with your bill, and, most particularly, can you perhaps in a nutshell show us how you feel it would fit within the test for a section 1 exemption?
Mr. Wappel: If I could reverse that, the section 1 justification would clearly be that as long as the common law has been in existence, the principle has stood that a criminal may not benefit from his crime.
Ms Clancy: With the greatest of respect, we both know that's the answer overall, but first of all, be a bit more specific on what the charter risk is.
Mr. Wappel: Quite frankly, I don't see that there is a charter risk. It's the department that sees a charter risk.
Ms Clancy: But isn't that sometimes difficult in our profession? When you're about to put something forward, we are supposed to look at both sides. You don't see it at all.
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Mr. Wappel: What they are saying is that this may be considered an undue restriction on freedom of expression. That's why I continue to stress that nothing in this bill prevents someone from expressing themselves. The only thing this bill does is it prevents them from profiting from that expression, in limited circumstances.
Ms Clancy: Would you think it could be an argument that freedom of expression is somehow curtailed by the prevention of the profit motive?
Mr. Wappel: Anything can be argued, I would assume, and any proposition can be put forward. Ultimately it would be for the Supreme Court on a specific fact situation.
Ms Clancy: What would be your own theory, though, on the impact of the removal of the profit motive as a let or hindrance on the right to freedom of expression?
Mr. Wappel: First, there is always a balancing of interests when we are dealing with legislation, because every piece of legislation impacts in some way or other on citizens where if legislation did not exist there would be no impact. So there's a balancing of interests - in this case the interest of society to ensure criminals do not profit from their crimes as against the interests of the criminal to profit from the telling of the story of their crime. In those instances, in my view, there really is no true balancing. Clearly the scales come down on the side of society.
Secondly, there are many potential motives for a person writing a book: confession; trying to explain to themselves, if no one else, why they committed a crime -
Ms Clancy: Expiation.
Mr. Wappel: - expiation. Profit might be only one of many motives. If in the balancing of interests it comes to whether or not we should restrict someone from making money because they want to make money by telling about their crime, as opposed to preventing that kind of thing, I would think we would come down on the side of the innocent, if I may put it that way.
Ms Clancy: I have just one other question. In your presentation you asked that this committee categorically reject such a ridiculous notion. You said ``categorically reject'', and I'm not sure what that means. Is it just a rhetorical flourish? Possibly you would never be guilty of a ``rhetorical flourish''.
Mr. Wappel: I think I've pled guilty to that in the past.
There is some rhetoric and there is some flourish there. Thank you for noticing it.
Ms Clancy: You're welcome. I just want to know what you mean.
Mr. Wappel: What it means is if we accept the principle that a bill should be rejected simply because it is at risk of a charter challenge, we'll never pass anything in the House of Commons. That's what it means.
The Chair: Mr. Ramsay, did you have any other questions?
Mr. Ramsay: No. I'm happy with this bill.
The Chair: May I ask a question? Under your bill, what happens if someone is in jail, convicted of a serious offence, but they say they're not guilty, so they write a book about it? I'm thinking of Donald Marshall. If Donald Marshall had, for instance, written a book to make money to assist himself in getting his sentence overturned, would this prevent him from doing that?
Mr. Wappel: Madam Chair, I believe you began with the preamble that someone is in prison and they say they are not guilty.
The Chair: Yes, he's convicted.
Mr. Wappel: Right. No one is in prison unless they're convicted. That means they're guilty unless there was a miscarriage of justice, which we hope is relatively rare.
Now, if the person who was convicted writes a book, then under this bill the profits thereof would devolve to the Crown. That would mean there would obviously be record keeping. Should it at some time appear there was a miscarriage of justice and the person was wrongfully convicted and is in fact innocent, then that money could presumably be turned over to that person at that time, because there would have been an accounting, and of course the federal government, as we all know, always has money.
The Chair: Or credit.
Mr. Wappel: Or credit, and it never ceases to exist. So no matter how long it took, in those rare instances the money could be returned, presumably with interest.
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The Chair: Do you remember the case of Julius Melnitzer, the lawyer from London who was convicted of defrauding clients of millions of dollars?
Mr. Wappel: I certainly do.
The Chair: He wrote a book, I think while he was in custody. The book described his crimes but also talked about life in jail. Many people thought it was quite a worthwhile piece of literature. Would it be caught in this?
Mr. Wappel: My response would be roughly the same as to Mr. Telegdi's question. If the work were based substantially on the crimes, yes, it would be. If it were only an anecdotal description and then describing his rehabilitation and what he observed in prison, then I would say no.
The Chair: Finally, I'm having some problems with your comparison of the lifetime ban on profiting from publication to the lifetime ban on weapons, because the prohibition on weapons is there to prevent that person from reoffending. Quite frankly, I can't even draw the same analogy with our new legislation that you do.
The idea of extending this penalty - I'll call it a penalty - beyond the time of the sentence doesn't follow the same logic, because you're not talking about preventing him or her from reoffending here. You're talking about preventing him or her from profiting from the story of a part of his or her life.
Nothing turns on it one way or the other. I have some sympathy with what you're trying to do. But Mr. Melnitzer, as a person who's been convicted, ultimately could get a pardon and carry on with his life. Say your bill is passed and he can't profit from his story. After he's paid his debt to society, been rehabilitated and been pardoned, why shouldn't he be able to tell his story?
Mr. Wappel: The answer is very simple. Either you accept the premise that a criminal should not profit from his crime or you don't. If you accept the premise that a criminal should not profit from his crime, it's all well and good that he has rehabilitated, but the principle is you cannot make money from the crime you've committed.
In terms of the lifetime ban, I remind you we're talking intellectually about copyright law. Copyright law provides that an author has a copyright for the life of the author plus 50 years. If we're vesting the copyright in the Crown, we're talking about the life of the author plus 50 years. This is no new concept. This is the concept of copyright. I wanted to point that out.
As far as the issue of pardon is concerned, it's a good point. That might be something the committee might wish to consider by way of amendment - for example, ``this bill does not apply in the event that a pardon is granted''. Maybe we won't want to. Even in the event that a pardon is granted, we may still want this to remain.
That particular objection, Madam Chair, could be dealt with by a reasoned amendment for those very rare instances, because of course, speaking of the net, we're really looking at the substantial criminal who offends Canadian society. No matter how long after the event, I can't see Paul Bernardo ever getting a pardon, even if he walked on Lake Ontario without the support of water wings. It just isn't going to happen. Or Clifford Olson.
There may be instances such as you've brought up, particularly in the case of a pardon, which you might wish to consider by way of amendment. I would have no objection in those circumstances to at least the consideration of that.
The Chair: I point out that with a life sentence there can be no pardon. It's not in the legislation.
Mr. Wappel: Thank you for that.
The Chair: And it's five or ten years after the completion of the sentence in the case of an indictable offence.
Mr. Wappel: May I also remark parenthetically that we're talking about a copyright ban for life, and remember, the victims of the criminal are victims for life.
The Chair: I know. We're being hypothetical.
Mr. Wappel: Yes, I understand.
The Chair: Ms Clancy.
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Ms Clancy: On the idea of copyright, quasi-copyright, or whatever, vesting in the Crown, could it not be...? The Donald Marshall case is certainly one. Mr. Telegdi reminds me of the Morin case. There have been significant miscarriage of justice cases in this country. What would you say to the Crown holding the money in trust?
Mr. Wappel: My preference would be to provide the money to victims, to education so as to try to prevent crimes from happening, to youth programs, to this kind of thing, because the Crown is always there. The Crown could always get the money from the consolidated revenue fund and give it to the innocent person who was wrongfully convicted.
Ms Clancy: Admittedly, I come from Nova Scotia and I was intimately acquainted with the Marshall case. You would not see it as appropriate that he could use it to help finance what was his ultimate vindication, even with the hindsight.
Mr. Wappel: Again, remember that we are talking about a work based substantially on the crime. Now, of course, if these people were wrongfully convicted, then they didn't commit the crime so how could they possibly write a book about the crime?
Ms Clancy: Would you therefore say you could not write...?
Mr. Wappel: They could write it about their experience.
Ms Clancy: Would you be limiting it then to the actual details of the crime, as opposed to Donald Marshall's story of what happened that night in Wentworth Park and the subsequent criminal proceedings that took place?
Mr. Wappel: Yes, it is limited, as you say, Ms Clancy.
I put in clause 1:
- (c) the creation within or outside Canada of a work that recounts or depicts the commission of an
actual offence of which a person has been convicted
Ms Clancy: All right, maybe I'm hair-splitting here, but the details of how the young man actually died in Wentworth Park were fairly well known. He was lying on the ground and died of stab wounds. If you depicted or if you published in such a book forensic reports and so on, would that offend under your statute?
Mr. Wappel: No. Any trial transcript or -
Ms Clancy: Witness accounts.
Mr. Wappel: - witness accounts - anybody could do that. But the criminal -
Ms Clancy: So what you're saying would offend would be: I walked up behind Sandy Seale and stabbed him, and as I drove the knife in - and so on.
Mr. Wappel: Right. The key is that it's the criminal talking about what the criminal did. If a person was wrongfully convicted, they didn't do it.
Ms Clancy: Can that legislation actually keep the parameters that narrow?
Mr. Wappel: That's for the consideration of the committee, but I think it's pretty clear when it says a work that recounts or depicts the commission of an actual offence of which a person has been convicted, or that is based substantially on the commission of such an offence.
Ms Clancy: Don't fall off your chair, Mr. Wappel, but I think it's a very interesting question and I think it's a rather interesting bill.
Mr. Wappel: Thank you.
The Chair: I must say, concerning the splitting of hairs, Mr. Wappel and Ms Clancy, it seems to me that happens frequently in court, so it's not such a bad idea. We might as well split them now as split them later.
Mr. Ramsay, if you don't ask my question, I will. Go ahead. I think I know what it is.
Mr. Ramsay: We do split hairs here, and I think it's a good idea that we do, so that when a bill does leave the committee it's as sound as it can be made.
I want to ask you this, and I don't know if it's Madam Chair's question. Why would you be in favour of or be prepared to accept an amendment to this bill that would, in the case of pardon, extinguish the principle contained in the bill that no individual should benefit or profit from their crime?
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Mr. Wappel: I don't think I accepted the principle. I accepted the principle that the committee might wish to consider such an amendment. I would argue against it. That doesn't mean my view would carry.
One of the theories behind a pardon - don't forget it's a pardon - as the prerogative of the Crown is that the person has been forgiven completely for the crime. The record is expunged. It's as if it didn't happen. No one can look it up, etc. So arguably it's not the same case as a conviction that remains on record.
For the types of crimes we're talking about here, pardons are not granted lightly. This would be another consideration the appropriate authorities would take into consideration before they granted a pardon.
Mr. Ramsay: Well, then, if a pardon were granted and the record were expunged, as you say, that person would be free to write about the crime he committed, the murder he committed -
The Chair: No, he can't ever, Jack. That's not fair. He can't ever, because he can't be pardoned for murder.
Mr. Ramsay: If it's not fair, Madam Chair, I'm sure Mr. Wappel will set me straight.
The Chair: That's the chair's job.
Mr. Ramsay: He would still be able to write and profit from having committed a murder, having killed someone. Is my understanding clear on this?
Mr. Wappel: I think the chair was trying to point out to you that there are certain offences for which you cannot get a pardon.
The Chair: Yes. Murder is not pardonable.
Mr. Wappel: That was the point the chair was making.
As the bill stands, the answer to your question is no, but if the bill were amended to include pardon, then in the circumstances where a pardon is permissible and is in fact granted, the answer to your question would be yes. That's a public policy thing, a question the committee would have to struggle with and decide.
Mr. Ramsay: Do you think the laws on pardon can be changed?
Mr. Wappel: Any law can be changed. Where there is a will there is a way.
Mr. Ramsay: There you go.
Mr. Wappel: Meaning?
Mr. Ramsay: Meaning a murderer could eventually be pardoned. The law could be changed so a murderer could be pardoned, and we would fall into this situation.
Mr. Wappel: Mr. Ramsay, I would suggest it would be very difficult for a government to get re-elected - any government, of any party - if it pardoned murderers who then went on to sell their stories and become millionaires. So I don't really see that as a likelihood.
I simply responded to the chair's suggestion on what about the instance of a pardon. Pardons are in fact granted. They are granted today, and they are granted for certain indictable offences. As the bill is currently drafted, that person would still not be permitted to profit.
Mr. Ramsay: The thrust of the question is the same. If a pardon is granted the individual can then write about the circumstances of the crime and gain and profit from it.
Mr. Wappel: They can do that right now, because there is no law to prevent it. If this bill passes they would not be able to do that, unless this committee amended the bill.
The Chair: Okay, now here's my special question, and I want to do it before Telegdi does. Why don't we amend this to assign the profits to a fund to benefit the victims?
Mr. Wappel: That's certainly a suggestion that has been mentioned. I would perhaps recommend that it be broadened, as I indicated, to provide for education, to provide for help for young people. I think it's a great idea to target the funds for the betterment of society, as opposed to having it go into the great sink-hole of the consolidated revenue fund.
I can say, however, that in my past experience on this committee these kinds of constraints on the power of government to collect money and then distribute it are usually vehemently opposed at least by the bureaucracy, if not by the politicians. I cite as an example the money we collect under the proceeds of crime legislation and when we seize drug funds. Even a simple effort such as returning the money to the police forces that seize the money is difficult, because it's seen as a constraint on the absolute right of Parliament - of the government, in effect - to decide what to do with its money.
But I would certainly support targeting the proceeds for the public good, as opposed to their being swallowed up in the consolidated revenue fund.
The Chair: It also might encourage police departments to seize for the sake of seizing.
Mr. Wappel: There's that.
The Chair: Mr. Telegdi.
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Mr. Telegdi: I know Mr. Wappel was at the crime prevention community safety conference in March 1993 at the Royal York in Toronto. One of the recommendations of the previous justice committee was that we should give money to crime prevention and community safety. One of the sources talked about was the money from the proceeds of crime. I think it would be a wonderful area to target funding to.
Actually, I would recommend the report of that committee to all members of the justice committee, plus the transcript of the conference. It was a good conference, and it made some very good suggestions. It was a unanimous report, as I recall.
Mr. Wappel: Yes, it was.
Mr. Telegdi: I don't think we'll get a unanimous report out of this committee, but I think we'll probably find that most of the members of the committee would support the recommendations.
The Chair: Ms Clancy.
Ms Clancy: Just one other thing. On the idea of a fund, is compensation for victims of crime currently within the provincial purview? Would we have to do some kind of a jurisdictional go-round if that were the -
Mr. Wappel: Madam Chair, there are laws on the provincial books providing for the compensation of criminals. There's no question about it.
Ms Clancy: There are boards too.
Mr. Wappel: But the Criminal Code does provide in the sections dealing with the proceeds of crime that the money seized is seized by the federal government.
Ms Clancy: But that doesn't say what to do with it.
Mr. Wappel: That's correct. There are some exceptions. I haven't done a detailed study, but there are some exceptions that we dealt with when we dealt specifically with drug seizures and cash seizures. So my answer may not be completely accurate, but the answer would be in the Criminal Code. The money is seized by the federal government and is dealt with by the federal government.
The Chair: Thank you. Mr. Ramsay, you wanted to say something about the proceeds of crime legislation.
Mr. Ramsay: Yes, it was just an extension of the direction the thought is going. In fact, as for this whole idea of recompensing the victim, I think there would be strong support for that. For some people who have committed personal injury crimes and who are remorseful about it, this might be a way for them to repay in some way, monetarily, their victims. So I would support....
There is the opposite side of the coin to that, and I won't even get into that. There's the damage of reliving the whole thing again for the victims, which might offset the monetary reward. But I would be prepared to support what Madam Chair suggested in terms of a fund.
The Chair: Thanks.
Did you have anything to say in conclusion, Mr. Wappel?
Mr. Wappel: Madam Chair, I want to thank the committee again for the opportunity to appear. I thank the committee for their questions. If I need to reappear, I would be only too happy to do so. Simply call. My number is in the book.
I wondered if I might have the guidance of the chair as to when, if or how the committee would be proceeding with this matter.
The Chair: That gives me an opportunity to do yet again another commercial for the justice committee, which is a superior standing committee. This is the only standing committee in the House of Commons that has a procedure to deal with a private member's bill in a respectful and prompt way. I see the chair of the defence committee is here, so she might want to take note.
Having said that, I have no idea when we're going to the next step. You may have some witnesses whom you would like us to consider calling. I understand we already have a list.
Mr. Wappel: I provided that.
The Chair: I can assure you that when - not if - we get to your bill, we will let you know. We also have a procedure to bring it up intermittently. You will receive notice of that. So you can always come for five minutes and urge us to make it a priority over everything else from time to time. So it never dies. It's always there staring us in the face. Ultimately, we have to come to grips with it.
Mr. Wappel: Thank you, Madam Chair.
The Chair: Thanks.
The meeting is adjourned.