Proceedings of the Standing Senate Committee on
Issue 23 - Evidence
OTTAWA, Wednesday, April 29, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-220, to amend the Criminal Code and the Copyright Act (profit from authorship respecting a crime), met this day at 3:39 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: Honourable senators, we have a quorum. I would invite the witnesses from the Department of Justice to come to the table. Please proceed.
Mr. Richard G. Mosley, Q.C. Assistant Deputy Minister, Criminal Law Policy and Community Justice Branch, Department of Justice: Honourable senators, my colleagues and I appear in response to a March 19, 1998 written invitation we received from the committee clerk. We responded in a letter, signed by me, dated April 2 -- which I presume has been distributed to members of the committee.
In light of the fact that we have laid out our comments on the proposed amendments to the bill, which were proposed to you by Mr. Wappel during his last appearance, we will dispense with any opening statement this afternoon and proceed to any questions which members of the committee may have.
Senator Beaudoin: When you first gave testimony before this committee, Mr. Mosley, you convinced me that this bill is seriously flawed, as far as the division of powers is concerned and as far as the Canadian Charter of Rights is concerned. It is certainly against freedom of expression, and I cannot see how it may be justified in a free and democratic society.
I am not satisfied, after having read Mr. Wappel's amendments, with the question of the division of powers. Obviously, the Parliament of Canada may legislate in respect of copyrights; however, if you eliminate the criminal law aspect of that bill, we may be in some difficulty.
It is also a fact that the Charter of Rights and Freedoms has not been modified; the section relating to freedom of expression is still in effect. The Supreme Court is very generously interpreting the Charter of Rights and Freedoms, and I agree with them.
I should like to know a little more precisely why you come to the conclusion that the bill is still seriously flawed. Will elimination of the criminal law aspect render the bill acceptable? I do not believe so, however, you are the departmental expert and I rely heavily on the Department of Justice and the Canadian bar.
Mr. Mosley: As we indicated in our April 2 letter, we remain of the view that the bill is seriously flawed, both from the Charter and a Berne Convention perspective.
With regard to the issue of the division of powers that Mr. Wappel has attempted to address through the deletion of the Criminal Code provisions of his bill, it is accurate to say that that goes a long way toward addressing that particular concern. However, it would still be arguable that the effect of the bill insofar as it deals with the copyright interests of the author could be argued to be a colourable infringement of the contractual private property interests of the author. It might still be attacked under a division of powers argument.
However, putting that aside, our primary concerns at this point remain with the Charter and Berne Convention implications. I will turn to my colleague, Mr. Sharzer, who will outline why we remain concerned about this bill.
Mr. Stephen Sharzer, Senior Counsel, Human Rights Law Section, Department of Justice: Madam Chairman, the thrust of the provisions in the bill, even with the changes that have been proposed, remain much as they were before. The basic thrust is the vesting of copyright in the Crown with respect to these provisions, and Mr. Mosley and Mr. Michael Peirce spoke to this before.
To that end, the potential effect of taking away profits from these sorts of publications -- the cumulative effect of vesting copyright in the Crown -- would have an effect on freedom of expression and probably be found to be a violation of section 2(b) of the Charter. The basic thrust of the bill in that respect has not changed, and thus our comments remain the same.
Mr. Mosley: To add to that, reference was made to the work that was done by the Uniform Law Conference of Canada -- which has been engaged over the course of the past several years in the development of a model statute for the provinces to consider adopting -- which would address the harm to which this bill is directed.
Before entering into an effort to draft the bill, the conference devoted a considerable amount of time and attention to the Charter issues and, in that regard, throughout the drafting process, the freedom of expression concerns were foremost in the minds of those who worked on that project. That model bill was largely completed last summer and distributed to jurisdictions for their comment over the course of the succeeding months.
Even with all the care and attention that went into that process, we have subsequently received an opinion from the Province of Saskatchewan's director of constitutional law who suggests that, prima facie, that bill, which includes a number of safeguards directed at protecting the Charter interests of the individual, would be in violation of section 2(b) of the Charter. The author of that opinion went on to indicate that, in his opinion, the bill was sustainable under a section 1 analysis of the issues.
However, if I may point to some of the differences with that bill, it leaves the question ultimately of whether there should be any seizure of the proceeds of the publication, with a court to determine. The court is directed to 2(b) considerations and is also left with a residual discretion to order that the proceeds not be paid into the account of a government agency which otherwise would be responsible for administering them and directing them to the purposes of the victims of the author's crimes.
This is a very difficult area in which to attempt to legislate. Even with considerable care and attention given to building safeguards into the regime, we find no comparable safeguards in this proposal that is before you. It is our view that, in those circumstances, this is constitutionally vulnerable.
Much of the discussion before this committee has turned on issues in relation to the Berne Convention and much of our response is directed at those issues. We would be pleased to address them in greater detail, if you so wish, and for that purpose I would turn to Jeff Richstone.
Mr. Jeff Richstone, Senior Counsel, Canadian Heritage, Department of Justice: Honourable senators, our argument on the copyright side is basically that the amendment or the suggestions do nothing to change the principal flaw of the bill, which is that the amendment and the addition of proposed subsection 4(d) is a violation of the Berne Convention.
There was testimony by Mr. Wappel before this committee that since the Berne Convention did not contain a definition of "author," member states were at liberty to define it as they would. He pointed to sections 12 and 13(3) of the Copyright Act, which deal, respectively, with Crown copyright, and the employee creations in the course of employment with an employer, that the employer gets the copyright. He suggested that, on the basis of those two precedents, Canada could, in conformity with the Berne Convention, enact this kind of provision. As Mr. Mosley pointed out in his letter to the clerk, we take issue with that kind of analysis.
The Berne Convention, it is true, does not contain a definition of author, and states are at some kind of freedom to define it as they will, but not totally without any regard to the intent and purpose of the Berne convention and not totally without any regard to the nature of the Berne convention. It is a convention aimed at protecting authors of literary and artistic works.
The two provisions in question that he cited as precedents are very different from this one. In those two provisions, we have a subsisting relationship between the employee and the employer in which the employee has been specifically contracted by the employer to produce these works. It arises in the course of employment. It must either be work that the employer has directed the employee or entered into a contract with the employee to produce, or Crown-commissioned work, where the federal or provincial Crown commissions a person to create a work for certain purposes, as set out in the course of the agreement. In respect of both provisions, as we pointed out, clauses exist which say that the parties can contract out of that situation and can have the authorship revert to the author, which is the normal rule under Berne and most Berne Convention countries.
This provision is different from that. There is no subsisting relationship. The work can be created many years or decades after the sentence has been served -- the person has totally paid whatever debt they may have to society or the social order. There is no relationship similar to what we would find in sections 12 or 13(3) of the Copyright Act. It is not a provision one sees in any copyright legislation of which I am aware. I have spoken to others, as well, and they are not aware of anything quite like this either. It is clearly not like the two precedents suggested by Mr. Wappel.
Senator Beaudoin: Could we say that it is against the Berne Convention?
Mr. Richstone: You are entirely correct, Senator Beaudoin. The Berne Convention sets out certain requirements, even though the term "author" is not defined. An author is not someone who has no connection whatsoever with the creation of a work. In the two cases mentioned, a contractual relationship exists because of the creative process and certain conditions that have been agreed to. A prior contractual relationship must exist. When the Crown orders someone to produce a work, it enters into a contractual relationship between employer and employee.
The Berne Convention stipulates that an author is entitled to the fruits of his work. The Convention contains some very stringent requirements. You cannot expropriate someone's work. It also says that as far as reproducing or publishing works is concerned, you cannot, as Mr. Wappel suggested in his fourth paragraph, create a kind of mandatory license. Mandatory licensing is permitted only in two very specific instances. This does not fall within these two exceptions. According to the general principles of the Berne Convention, you cannot impose a mandatory license which would force an author to cede part of his work or some of his rights.
Senator Beaudoin: Later, I should like to address the question of property and civil rights, because I think this bill also encroaches there.
Senator Gigantès: Was section 13(3) used, to your knowledge, in the case between Mr. Pierre Turgeon in Quebec and the Réno Dépôt proprietor who had commissioned research and had paid in advance? The courts in Quebec found that the copyright vested with the Réno Dépôt owner who actually had a contract and could say, "I do not approve of this text, and I do not want it published."
Mr. Richstone: I have not read the judgment, only newspaper reports. From what I gather from those reports, there are two bases for that decision -- one was the Copyright Act. It may not have been 13(3) because I do not think Mr. Turgeon was an employee. It was a simple contract, so, no, it was not 13(3). It was a contract outside of the Copyright Act. It was based on the wording of the contract and on the Civil Code, the privacy provisions. To answer your question, now that I recall, no it was not 13(3).
Senator Gigantès: If the copyright were vested in the Crown, it would, in a way, take things out of the reach of publishers. Aside from the fact that obscenity laws would make Bernardo's material unacceptable, if he were able to skirt the obscenity laws and publish a book, is it at all possible to imagine a federal government giving permission to publish a Bernardo book, if the federal government has seized the copyright? In effect, the book would never be published. There would be no royalties, and the victims would not get a penny.
Mr. Mosley: I think we would agree with those conclusions.
Senator Joyal: I listened to what the witnesses from the Justice and Heritage Canada departments had to say earlier and to the questions raised by my colleague and friend, Senator Beaudoin. I have a question as a lawyer. Is it not a fact that in some U.S. states, regulations are in place restricting the right of a person serving a sentence to profit from his crime by writing a book about it? I believe an earlier witness made a reference to laws of this nature which are on the books in certain U.S. states. Am I correct?
Is it not true that in some American states legislation exists which prevents someone who has been sentenced for a crime from profiting directly from the exploitation, in writing, of that crime? Does that not exist in some American states?
Mr. Paul Saint-Denis, Counsel, Criminal Law Policy Section, Department of Justice: Laws were in fact passed in the United States to deal with this matter. I am most familiar with a law passed in the state of New York. In this particular instance, a lone killer had signed a deal with a publisher to write a book about the crime he had committed. The state of New York moved quickly to pass a law whereby any proceeds from the sale of this book would be turned over to a state-run agency. This particular law was challenged before the courts and ultimately the Supreme Court ruled that it was unconstitutional. The state of New York later passed new legislation which limited the extent to which the state could intervene.
Pursuant to the new legislation, members of this agency are now required to contact the victims of the crime to inform them that a work about the crime is going to be published and to let them know that they can take civil action against the offender. As far as I know, that is the extent of the law in the state of New York.
Senator Gigantès: Does this New York state law also extend to the profits earned by the publisher? Could one of the victims sue the publisher for part of the proceeds arising from the publication of the book?
Mr. Saint-Denis: In the field of civil law, a person can sue anyone he likes for any reason he likes. However, I do not believe the legislation makes any kind of provision for this. It simply states that victims must be advised of their right to bring legal action against the person convicted of the crime. That is about the extent of it.
Senator Gigantès: Are you talking about prosecuting that person in criminal or in civil court?
Mr. Saint-Denis: No, about bringing legal action against the convicted person in civil court.
Senator Joyal: I was right to go easy on Senator Gigantès, because essentially, he is talking about a possible solution, in keeping with the objectives sought by Mr. Wappel's bill. I would like to pursue this matter. I am still thinking about my colleague, Senator Beaudoin, who loves comparative law. Given that it is extremely difficult to legislate in this area, it is always a good idea to look at countries with similar human rights principles and legal systems and see what solutions they have devised so that we can draw on their experience.
As far as you know, have any other U.S. states attempted to enact legislation the aims of which are comparable to those of the New York state legislation?
Mr. Saint-Denis: I believe so.
The Chairman: It might be of interest to know exactly what Mr. Wappel said the last time he appeared before us:
Mr. Mosley failed to tell you that over 43 of the United States of America and the District of Colombia have legislation which in one way or another seizes the proceeds of crime, which are deemed to include works sold by a convicted criminal, that these laws are all on the books, and that they have not been struck down. Indeed, there is no reason to believe that they will be struck down by the Supreme Court. This has occurred over a period of 20 years since the decision of the U.S. Supreme Court in the Son of Sam case.
Perhaps you could comment in the light of this as well.
Senator Joyal: If I may interject before our witnesses have an opportunity to answer, it seems that there are qualifications to bring to that statement because, as our witness has said, there have been judgments from the Supreme Court of the United States striking down some of that legislation. In that case, it is proper to be on record with that qualifying statement.
In terms of the objective -- the subject that is brought to our attention -- I, too, have a certain number of reservations on the basis of legal grounds for that bill. On the other hand, it is an opportunity for us to know exactly how other "democratic" systems who value the fundamental protection of human rights have dealt with the question. If we strike down the bill, we could know that there are alternative solutions to reach those objectives in respect of the principles that we cherish in our country.
It is important to compare the States and, as a corollary, the European countries because they are often signatories to the same treaties as we are, such as treaties on the protection of human rights. We should see how they are dealing with the issue. That is part of the question on the fundamental principles of our legal system.
Mr. St. Denis: In point of fact there are, as Mr. Wappel has indicated, and as have you noted, Madam Chairman, a number of states in the U.S. that have legislation dealing with this subject. Unfortunately, I am not able to be specific, but in light of the fact that the Supreme Court of the United States has struck down what was a fairly interventionist piece of legislation by the State of New York, it is quite possible that the other states either passed legislation subsequent to this decision or amended their legislation to reflect the concerns expressed by the Supreme Court.
Regrettably, we have not done a comparative analysis of the legislation of states within the United States, nor have we looked at Europe to see what they have done in this area.
Senator Joyal: Could you tell us approximately when the U.S. Supreme Court handed down this ruling, so that we can know if it is a relatively recent decision?
Mr. Mosley: The U.S. Supreme Court rendered a decision in 1991 in the case of Simon & Schuster v. New York Crime Victims Board, relating to the Son of Sam crimes.
There is literature on this subject which could assist the committee's researchers in their pursuits. Without meaning any disrespect for the legislative process, trends develop from time to time in which jurisdictions rapidly adopt legislation that conforms to models developed in one or more of similar jurisdictions. It is fair to say that in the United States, following the adoption of the Son of Sam legislation in New York State, most of the other U.S. states followed suit. Indeed, the Province of Ontario followed suit and adopted its own act, for fear of a similar problem emerging within that province.
It is, of course, one thing to have a statute enacted into law; it is another to administer and enforce it. For example, to my knowledge, from discussions with the Ontario authorities, that statute has not been applied. It is not an area where there has been a great deal of actual experience.
The legislation tends to be adopted when there is a perceived need for it because of a particular incident. In the U.S., in New York State, of course, the one incident involved Mr. Berkowitz, the Son of Sam killer. Here there have been suggestions that something similar could happen with writings related to Mr. Olson, Mr. Bernardo or Ms Homolka. To date, we are not aware that a real problem has emerged in respect of anyone of that ilk.
Notwithstanding that, both the federal Minister of Justice and the provincial Attorneys General have recognized that this is a matter of concern. It is a concern to Canadians who expect governments to respond to issues of this nature when they arise. It was that which motivated the direction given to the Uniform Law Conference to come back with proposals for legislation that would be sustainable within our constitutional framework. The conference looked at the option of a federal criminal law approach. In fact, it looked at that option on a number of occasions and, on each of those occasions, concluded that it would not withstand Charter scrutiny; it concluded that the option of a federal criminal law approach was ultimately a matter of property and civil rights -- which, as you know, under the division of powers that Senator Beaudoin has referred to, belong to the provinces.
In consequence of that conclusion, which the conference arrived at on several occasions, most recently about three years ago, work was undertaken to develop a model statute to address the evil or harm which is the target of Mr. Wappel's bill. That work was endorsed by federal and provincial ministers at a meeting last year.
We do not wish to suggest to the committee that it is impossible to come up with legislation that can address that harm or that perceived evil, but we do suggest that it must be done very carefully and that it is more appropriate for it to be done by the provincial governments acting within the sphere of their authority.
Senator Beaudoin: Property and civil rights is at the core of this problem, because people in the population say, "Oh, we should give money to the victims." I cannot agree more, but that is not what this bill is doing. If the copyrights are expropriated, the victims will have nothing; if you follow the laws as they are, at least the victims may sue the author and obtain damages. There are those who say that we should expropriate, that the criminal should not have any rights to the proceeds, but this does not help anyone in the sense that those who have suffered damages, the victims, will not receive any money. My problem is this: Who may do that? My immediate answer is probably the provinces, not the Parliament of Canada, because we do not have jurisdiction over property and civil rights.
Some other lawyers say we have jurisdiction over copyright so we may legislate in respect of the proceeds of the copyright. That is an interesting argument. I would like to know what you think about that.
Mr. Mosley: I think I agree entirely with you, Senator Beaudoin, that there is no real public interest in seeing anything seized to add to the Consolidated Revenue Fund. The concern behind the adoption of the legislation in this area in the United States, and behind the Ontario legislation and the model statute proposed by the Uniform Law Conference, is that the proceeds from the publication of such an account should go to the victims.
Senator Beaudoin: But is that what is accomplished by the Ontario statute?
Mr. Mosley: That was the intent. I think the common view is that that has not been accomplished by that statute.
Senator Beaudoin: It has not?
Mr. Mosley: No. And it was for that reason that the Ontario model was not followed in the drafting process in the Uniform Law Conference. The conclusion was that it would, if seriously challenged, be struck down, and I add that the occasion for challenging it has not arisen because a real case has not presented itself. However, if it were to be seriously challenged, there is a view that the Ontario statute would be struck down as being overly broad in its reach.
The Chairman: I believe this committee was told that something like $11 had been collected under the Ontario statute.
Senator Joyal: My question is on the follow-up on the issue. Would it not be possible for this committee to have a copy of the Ontario legislation? When was it adopted?
The Chairman: In 1994.
Senator Joyal: And there was some opinion among the conference of nine Attorneys General that the Ontario statute would not survive a test case, but I am sure that the Ontario legislature has certainly not legislated without a minimum of legal evaluation of the proposed legislation at that time, because they are, of course, subject to the same Charter and the same prohibition that we face at the national level. I certainly would like us to look into that statute, at least for our own information, to determine whether the Ontario statute is along the lines of the New York one, which essentially gives the legal power to someone to seek an injunction to seize the proceeds of the sales of the publication. Or does the legislation go beyond that? In other words, does it violate the freedom of the person who has been sentenced?
Mr. Mosley: I must confess, it has been about two years since I have looked at the Ontario statute, so I simply cannot recall. However, if you look at that statute, you might also look at its legislative history. My recollection is that it was adopted virtually overnight. It originated as a private member's bill and was adopted by the government of the day and passed with very little debate in the Ontario legislature.
Frankly, I do not wish to enter into a protracted discussion about the merits of it because I cannot remember the merits of that bill. I do know the process that was undertaken within the conference. The conference is supported by the Attorneys General but it is not a conference of the Attorneys General. Representatives of the various ministries and members of the private bar are selected to form a delegation and are sent each year to the conference. However, the task of developing the model statute was undertaken by the conference at the direction of the Attorneys General, including the Attorney General of Ontario. Therefore, in looking at the options that were available to address the harm or the evil in this area, certainly the Ontario model was examined.
Senator Joyal: When that model was examined, am I right to say that the conference considered the American experience? If there are 43 states that have legislated one way or the other, perhaps the legislation has been repeated from one state to the other in a domino kind of effect.
Are you aware that some of that legislation differs from state to state in terms of the means that they resorted to, to try to achieve the objectives, or is this still too vague in your mind?
Mr. Mosley: My recollection is that there are differences in these state statutes. Essentially, the basic model is one in which the state serves as trustee for the victims, to avoid the situation of the victim having to sue, establish liability and then recover proceeds in the normal course of events. Instead, the state steps in and acts as trustee on behalf of the victim, collects any revenue that might be forthcoming from the publication, and then distributes it to any victims of the offence on an administrative model.
I am sure there are variations on that theme, but I think that is essentially the model which the American states have adopted.
Senator Joyal: In your opinion, is it that model that has been struck down by the Supreme Court of the United States?
Mr. Mosley: The original statute went further than that. We could provide you with further information but, at the moment, I do not have it at my fingertips.
Senator Joyal: You were not informed that we would go into that line of questioning, and I sincerely apologize to our witnesses.
I did not want to cause them embarrassment, Madam Chairman, however, it is a question that has raised fundamental issues. As my colleagues realize, it is easy for us to say no to a bill and think we have dealt with the issues; however, that is not fulfilling our purpose in the Senate. We cannot deal with legislation overnight. We try to understand its implications and, if it is considered flawed, we must at least provide direction so that if, down the road, new legislation comes forth, it will at least meet the objectives and go through the legal test of its practicability.
It would be useful for us to try, as much as our witnesses can do, without causing them too much work, to come to us with some kind of information of what are the various options that are being considered in the legislation.
The Chairman: Senator Joyal, our mandate is to review Bill C-220. We do not have a mandate to explore all the legislation of the surrounding countries along the same line. We have heard quite a significant amount of information from our witnesses. I would hope that we will be able to get a copy of the Ontario legislation and get that to you, Senator Joyal. However, beyond that, I do not think we can go.
Senator Beaudoin: To return to what you said, Madam Chairman, in the first round we have heard experts. You were there, the Canadian bar was there, many lawyers were there. We came to the conclusion that there were many problems with this bill.
Mr. Wappel has now made some amendments. We have the material here and most of those who have considered those amendments still agree that there is a serious legal problem. Should we go further than that? It is up to Mr. Wappel to modify his bill if he wishes, however, it is not up to us to write the bill in this place.
If you say, "Senator Beaudoin, you know constitutional law, make me a bill on this," it may be possible, however we have three problems here: the division of powers, the Charter of Rights, and the provincial legislation on property and civil rights. These issues have not been touched very deeply so far.
I agree with everything you have said, Mr. Mosley, and there is probably a big problem when we are talking about the indemnification of victims. It looks like civil law, it looks like common law, it looks like property and civil rights. We cannot do that at the federal level.
Here we may legislate on criminal law, on copyright, and we have to respect the Charter. However, we cannot legislate on property and civil rights, because it is against the division of powers.
It may be that the intention of Mr. Wappel may be taken care of by the federal Parliament and the provincial legislatures because we have two big problems involved. This bill will affect not only copyright and criminal law, but property and civil rights. This is my concern.
Is it our duty to say: "Okay, we will draft the bill for you. If you think the provinces should do something, write the bills and we will present it before the Quebec or Ontario legislature."?
Are we going to go that far? I raise the question.
The Chairman: As you well know, the answer is of course not.
Senator Gigantès: Senator Beaudoin raised most of the issues I wanted to raise and did it much better than I would have.
When you are talking of property rights --
Senator Beaudoin: No, no, property and civil rights.
Senator Gigantès: The seizing of copyright is the seizing of property, is it not?
Senator Beaudoin: That is one of my concerns. Are the expropriated proceeds of a copyright still subject to the Copyright Act, or are we encroaching on property and civil rights? I have a problem with that.
Senator Gigantès: If you seize the copyright, you are seizing property.
The Chairman: This is a very fair question to our witnesses from the Department of Justice.
Mr. Richstone: I responded to the point on which we had a difference of opinion, which was in a very different context and very different question.
If we are looking at this as a property right, and there is no question that it is a property right, a property interest, and you are seizing a property interest, there would be division of powers considerations, there is no question about that.
Senator Beaudoin: That is your opinion.
Mr. Richstone: There would be division of powers considerations. Even though I suggested there was federal legislation, it depends on how the federal legislation is structured. I take your point, which was the question of colourability.
Senator Beaudoin: We agree, then.
Mr. Richstone: I take your point, yes. Certainly, it is even more clear in the new subsection that Mr. Wappel suggested.
Senator Beaudoin: Do not forget, Mr. Wappel is quite interested in having his bill adopted; I understand that. He dropped the basis of criminal law and he relies on copyright, which is obviously federal. He thinks that he is on safe grounds now. However, there is still this question of expropriation of the proceeds of copyright.
Senator Gigantès: Not the proceeds, the copyright itself.
Senator Beaudoin: The civil code of Quebec was amended a few years ago to get rid of what is called "la mort civile." Some centuries ago, a criminal would lose everything, not only his liberty, but his goods and his assets. We have abolished that in the Quebec civil code. I will rely on you because you are the experts. My impression is that it may be the same thing, but I leave that to you. If it has been abolished, certainly the Parliament of Canada cannot resurrect that. We punish a criminal by saying, "You have committed a crime, so you will spend so many years in jail." That is the end. We may discuss ad infinitum the sentence. That is criminal law. However, we cannot legislate in civil law. This worries me to a certain extent.
Perhaps the only way to cure this problem is to have federal legislation and provincial legislation. I do not know the solution, but it is up to the person who is presenting a bill in Parliament to find a way to do that.
I raised the question with Mr. Wappel, and he said leave it to the Supreme Court. He is right in the sense that the Supreme Court will have the last word, but as a senator I do not like to say yes to a bill if I am not convinced prima facie that it is not against the Charter and the division of powers. That is my reflection as a lawyer and as a senator. It is up to the drafters of a bill to satisfy the Senate and the House of Commons that the bill is legal.
Senator Gigantès: The reaction of the Quebec government would be stay out of our preserves.
The Chairman: Senators, I believe we are entering into a debate rather than questioning our witnesses. We do have other witnesses on the list.
Senator Joyal: I did not want to take the initiative of this committee having to redraft the bill. Following the conference that was put together, perhaps the Department of Justice or the Department of Canadian Heritage could make that information available to us.
The objective of the legislation is to alleviate the pain of the victims. Forget about Mr. Wappel, with all due respect. We should never forget that this bill has a social and humanitarian objective. I feel that if this bill is badly drafted and cannot survive the test case of the courts, we cannot play with the court by adopting a bill and then sending it to them. That is not the way we want to act.
On the other hand, when someone has gone through a number of parliamentary steps and a problem exists, as alluded to by our witnesses today, and information is available so that someone else could carry the ball to meet the objectives of the legislation, I do not think it is asking too much for the witnesses to provide that information to us. They should make it available to the Canadian public and to the other people who are involved and interested in achieving those objectives. Can our witnesses make that information available to us so that those who are concerned with the objective of alleviating the pain of victims are able to resort to it?
Mr. Mosley: We can certainly assist the staff of the committee in assembling the materials about the American legislation.
Senator Joyal: And the information from Ontario and that conference.
Mr. Mosley: Yes, of course.
Senator Gigantès: Madam Chairman, whatever the information might say, it will not overcome the obstacles that Senator Beaudoin has so properly described.
The Chairman: That may well be, but we will expect to get some information from you as soon as possible because we hope to complete our hearings on this bill very shortly. Thank you for appearing before us.
I would remind honourable senators that this is a private member's bill. Although we do a lot of rewriting and amending of many government bills, I believe it is not the place -- and I am open to correction -- of a Senate committee to guess at what is in a private member's mind and to reword a private member's bill.
Senator Gigantès: What about Senator Cohen's private bill?
The Chairman: We are allowing Senator Cohen to rewrite her bill, as we did Mr. Wappel.
Senator Joyal: The situation is similar to prisoners in a prison. They have the right to one phone call, and if the line is busy or no one answers, that is it. This is the law.
The Chairman: I hope our line is not busy and we are answering.
Our next witness is Ms Grace Westcott.
Ms Grace Westcott, Executive Secretary, Canadian Copyright Institute: Honourable senators, the Canadian Copyright Institute is an association of creators, producers and distributors of copyright works primarily in the print industries. The institute's purpose is to encourage a better understanding of copyright, both among its members and among the public, and to engage in and to foster research into and reform of copyright law.
Several of our members have made independent presentations on matters of policy concerning Bill C-220. The CCI recognizes that there are important matters of policy reflected in the bill and in the criticisms that have been levelled against it. However, my role today will be confined to commenting on the technical and legal copyright issues in the bill.
I want to say at the outset that, while I will focus strictly on the legal copyright issue, I do not wish to appear insensitive to the very real human concerns that the bill seeks to address.
The institute believes that Bill C-220, both as passed by the House of Commons and despite the proposed amendments of Mr. Wappel, would contravene a fundamental principle of international copyright law under the Berne Convention. Obviously you are very familiar with that problem under the Berne Convention. It is a fundamental obligation under the Berne Convention that copyright law must protect the basic rights of authors and their copyright works. Certain derogations from the rights of the author under the convention are permissible, but in our view none are broad as to permit the wholesale expropriation of copyright as is contemplated by the bill.
We have looked at those permitted derogations under the Berne Convention. We considered Article 17 of the Berne Convention, which is known as the police power. It provides that a government retains the right to permit, control or prohibit by legislation or regulation the circulation, presentation or exhibition of any work or production. This exception was designed to permit the restriction of authors' rights in the interests of public policy, such as obscenity and libel laws in certain states, including state censorship.
Its intent is merely to acknowledge that a state continues to have the right to establish rules of general public policy by which an author must abide, but it does not extend to permitting the wholesale expropriations of an author's copyright.
In this view, we are supported by the author of a leading text on international copyright law, Professor Nordman, who states:
Under no circumstances could article 17 --
-- the police power --
-- be invoked to derive a right of an individual country of the Union to expropriate a Union author partially or completely. It would be absolutely incompatible with the contents of the Revised Berne Convention if the minimum rights which are granted to the author iure conventionis and which can be directly claimed by him in every country of protection could be undercut by a country of protection by simply taking them away from him.
Senator Gigantès: Can we have a copy of that?
Ms Westcott: Absolutely.
The amendments proposed by Mr. Wappel do not alleviate the situation because they continue to presuppose that the Crown takes the copyright away from the beginning.
I imagine the proposed amendment of 12.1(4) was intended to address freedom of expression concerns in some measure. However, not only does it not alleviate the copyright concern, but also it adds yet another dimension to the copyright problem. The proposed subsection 4 would create a compulsory licence.
Now, the Berne Convention permits compulsory licences but only in a couple of very narrow circumstances. This particular circumstance does not fit within those specified circumstances.
The police power of article 17 does not give a member state the right to permit the dissemination of works without the consent of the author. It is more the negative power to censor rather than to permit its being disseminated without consent.
I would like to support the comments made by Mr. Richstone concerning the arguments of Mr. Wappel about the definition of what an author is under the Berne Convention. He is right. "Author" is not defined under the Berne Convention, but that does not mean the term is without meaning. It is not infinitely elastic. It has to have some nexus to creation, to being a creator.
You have to look to the context as well. We have a police power in article 17 of the Berne Convention which circumscribes to a certain degree what is permissible for a member state to do in derogating from the rights of an author. It would be a very inappropriate interpretation of the term "author" to permit a state to interpret "author" in such a way that it could expand its rights beyond the borders of the police power under article 17 of the Berne Convention.
The Canadian Copyright Institute believes that this bill should not be passed.
Senator Beaudoin: It is clear from your comments that this bill goes against the Berne Convention.
As a country, when we enter into a treaty, we must legislate to give effect to that treaty. The Parliament of Canada has the jurisdiction to do that. Is it your contention that this cannot be done unless we follow closely, or arbitrarily, the terms of the Berne Convention?
Ms Westcott: I am not sure I understand your question.
Senator Beaudoin: We have a copyright law in this country. We hear from time to time suggestions of amendments to that law. It is within our jurisdiction to legislate the best of them. Now we have a private member's bill seeking to amend the copyright law. You say it cannot be done because it is against the Berne Convention, and I rely on your expertise in that, obviously.
Your opinion, as I understand it, is not based on freedom of expression; it is based on the Copyright Act?
Ms Westcott: That is correct.
Senator Beaudoin: In other words, Canada would not be faithful to its international obligations following the signing of the Berne Convention if we accept such a bill?
Ms Westcott: Yes, that is our view.
Senator Gigantès: You raised the point, Senator Beaudoin, that an international convention then must be implemented by legislation. Was this so implemented in Canada?
Ms Westcott: Yes, we are a signatory to Berne. Under the terms of NAFTA and WTO, we are obligated to comply with the terms of the Paris version of the 1971 Berne Convention. We are also expecting to become a signatory to that, but currently our copyright law does comply with the Paris version.
Senator Gigantès: Was it implemented by Canadian legislation? That is the point.
Ms Westcott: Yes, Canada is a full member of Berne.
Senator Gigantès: That is not the point. If you have an international convention or a treaty, before it becomes, in a sense, Canadian law, it has to be implemented by Canadian legislation. Was the Berne Convention so implemented by a Canadian statute?
Ms Westcott: Yes, that is the Copyright Act.
Senator Gigantès: Was that subsequent to the Berne Convention?
Ms Westcott: We have had a Copyright Act in Canada since prior to the Berne Convention, to which we became a signatory. We implement the provisions of the Berne Convention. The Berne Convention itself does not have force in Canada. It is only through the implementation of the Copyright Act which then complies with the Berne Convention.
So it is the Copyright Act which complies with the minimum conditions of the Berne Convention which is the law of the land. The Berne Convention is not part of the law.
Senator Lewis: Canada is a signatory to the convention.
Senator Beaudoin: That is not good enough.
Senator Lewis: Yes, but we are still signatories to the convention.
Senator Beaudoin: Yes.
Senator Gigantès: If our Copyright Act conforms with the convention, you are arguing that this business of implementing it was already done before we became signatories of the Berne Convention. We implemented the convention before the convention was written?
Ms Westcott: The Berne Convention is updated from time to time. Our copyright law is updated from time to time. We try to keep the provisions of our copyright in line with our commitments under the Berne Convention. The statement I have made, and it was just a single point in my presentation, was that if the Copyright Act were amended as proposed by Bill C-220, we will be offside because it will derogate from minimum authors' rights which we have agreed to implement in our Copyright Act, which currently are implemented in our Copyright Act.
Senator Beaudoin: That answers my question.
Senator Joyal: This is exactly on the point that the witness has been discussing with my colleagues. The Library of Parliament briefing note states:
Although as a treaty, the convention is not self-executing in Canada, it is not without legal effect for Canada. Under NAFTA and TRIPS, Canada's non-compliance with the Convention's substantive obligations may give rise to the complaint and dispute resolution mechanism of those instruments.
Therefore, I think the distinction, for ordinary citizens, might be one of legal niceties. However, it is important to say that the convention, as such, is not self-executing in Canada, because it has only an indirect impact for non-Canadians who would be barred from some of the effects of the benefits of the convention through NAFTA or TRIPS but not Canadians. Canadians are protected through the Copyright Act but not through the Berne Convention. Foreigners would be protected through NAFTA and through TRIPS, but not Canadians. It is a legal nicety, but nevertheless I think it is important that this committee, which is responsible for legal matters and constitutional affairs, has its record straight in its minutes showing that we understand what the Berne Convention implementation in Canada is.
Ms Westcott: That is right. It is certainly within the power of the government to enact valid legislation which is not in compliance with Berne, and it would remain valid Canadian legislation, but it could give rise to a complaint under the WTO TRIPS agreement by a foreign state.
The Chairman: Carrying on from what you were saying, Senator Joyal, the letter that we received from the Department of Justice officials continues:
Consequently, the substantive obligations of the Berne Convention are binding upon Canada, via the disciplines set out in NAFTA and in TRIPS.
That was the point you were making.
Senator Joyal: But for foreigners, not for Canadians.
Senator Gigantès: That is an important point.
Senator Beaudoin: If I may add something, the mere fact that Canada has signed the Berne Convention, and the mere fact that we are a legislative house, puts us under the obligation to respect the Berne Convention. We are under that obligation. Obviously, a convention is not the law of the land until we legislate, but today we are legislating. Bill C-220 will be a statute if we say yes. We legislate, we implement, and if we do that, your argument is that we are going against the terms of the Berne Convention.
Ms Westcott: Precisely.
Senator Beaudoin: That is the only thing of interest to me.
Ms Westcott: That is my sole point.
Senator Gigantès: On this point, if we break the convention by statute, we might find ourselves in the strange situation where foreigners would be protected but not Canadian citizens.
Senator Joyal: Exactly.
Senator Gigantès: I do not think in all conscience we could put Canadian citizens in a situation where they are disadvantaged compared with, say, Americans or Mexicans.
Senator Lewis: Canada is a signatory to this convention. I do not think that we should enact legislation which would be contrary to a convention our country has signed. I certainly would not want to contemplate that or be party to it.
Senator Joyal: On the legal ground, it is very important that we make those distinctions because they must be well understood by the public who might read our proceedings. They must understand what we are doing and the implications, both international and national, of what we are doing.
The Chairman: Since this is such an important point, with your agreement, we could ask Mr. Richstone to come back to the table to help us. Mr. Richstone, have you an opinion on this Berne Convention issue?
Mr. Richstone: Yes. I would say that our reading of the relevant international obligation is that it applies across the board. It is not simply an obligation that we have contracted for foreign nationals as opposed to our own nationals. Our TRIPS obligation comes from the fact that it states that the party members states shall apply articles 1 through 21 of the Berne Convention, period. It does not say just for foreign nationals only and not for Canadians. It applies across the board. The NAFTA obligation is almost word-for-word the same, that the parties shall apply 1 through 21 of the Berne Convention, so that is a self-standing treaty obligation and we interpret it to apply across the board, to foreign nationals and to our own nationals.
We also look at the Berne Convention as setting down two major rules of treatment, and I think that was exposed in Mr. Mosley's letter, a rule of national treatment and minimum rights. We interpret minimum rights to apply to all authors, foreign as well as Canadian. There are two facets even to the Berne Convention, quite apart from the super-added obligations of TRIPS and NAFTA. The Berne Convention itself says you must treat foreign nationals as your own, but it also goes on to specify certain minimum rights, which were referred to in Ms Westcott's presentation, the minimum of Berne, and those rights apply throughout to all authors, irrespective of nationality.
While I have the floor, I would just like to add one historical note. We had been obligated to the Berne Convention while we were still legally part of the British Empire, before we acquired our own independence, certainly before the Statute of Westminster. Although we enacted our own full Copyright Act in 1921, we had, through the British Empire, adhered to the Berne Convention, the first one of 1886. When we adhered in our own right to the revision in 1928, we then passed the statute making sure our legislation was in conformity with it. When we contracted our NAFTA obligations in 1994 by our NAFTA implementation bill, we amended the Copyright Act to make our legislation in conformity with our NAFTA obligation which was the most recent formulation of Berne, the one of 1971. Likewise, we added new amendments in 1995, when we adhered to the World Trade Organization. Thus, our adherence to Berne was, as Ms Westcott pointed out, ongoing because Berne was originally an 1886 convention, updated in 1971.
The Chairman: I would like to thank both Ms Westcott and Mr. Richstone for their attendance before our committee.
Our next witness is Mr. Steve Sullivan. Welcome, and please proceed.
Mr. Steve Sullivan, Executive Director, Canadian Resource Centre for Victims of Crime: I have with me Mr. Gary Rosenfeldt.
We will keep our opening remarks brief. We have already spoken to the bill. We have addressed Mr. Wappel's amendments in a letter sent to you.
That letter makes clear that we support in principle the amendments Mr. Wappel is suggesting. They have not changed the general principle of the bill, which I think we and most Canadians support, which is that criminals should not profit from their crimes whether directly or in a more indirect manner through the selling of stories.
We have read over some of the testimony of the witnesses who appeared here, including Mr. Wappel's last appearance when he made reference to the appearance of Mr. Mosley from the Department of Justice. We were encouraged to see that Mr. Mosley was working with the provinces to draft legislation that would do the similar types of things that Mr. Wappel's bill has done. Therefore, even if Mr. Mosley does not support Mr. Wappel's bill, it is encouraging to see that he supports the principle behind it, which is that criminals should not profit from their crimes.
Given that support and given the fact that House of Commons has supported this bill unanimously twice, it is a clear indication that the principle is a sound one, that Canadians would support. You obviously must deal with much more than that.
On the subject of the Berne Convention, Mr. Rosenfeldt and I agree that we are not experts. We can, however, bring a different perspective. Mr. Rosenfeldt brings the perspective of someone who has lost a son to an offender about whom this bill would most likely deal. Certainly, we have both done work on high-profile crimes, but many crimes are just as serious, although they may not be as well known.
The major amendment that we see when we look at Mr. Wappel's amendments to Bill C-220 would be the addition of proposed subsection (4) to clause 3 regarding the Crown's ability to grant royalty free licences if the Crown is satisfied that the offender will not profit from the work.
Again, we will never support any legislation that would attempt to prevent anyone from expressing themselves. We do not think this bill offends the Charter sections at all. Bill C-220 would not prevent even Clifford Olson from writing a manuscript and donating it to a library, for example, even if it detailed his crimes in the most horrible way. It would, however, limit his ability to profit from that, and that is the section of the bill or the target of the bill that we support.
We do not have any problem with the amendment Mr. Wappel has suggested, which makes it clear that if there is no profit on behalf of the offender, the Crown cannot prevent publication. This is an important point to clear up because some witnesses have raised that concern.
The committee might have heard other testimony, that this bill is unnecessary because if criminals do profit from books and that type of thing, the victims can simply sue in civil court. It is a ludicrous suggestion to put victims through that and, as Mr. Rosenfeldt can tell you in detail, lawyers do not come cheap. He and his wife are still paying a lawyer they hired 15 years ago to try to take some of the money that Mr. Olson got through his deal with the RCMP.
We have heard that the French and Mahaffey families are paying in excess of $500,000 in legal fees for a different type of fight. Clearly, the victims do not simply have a cash fund where they can hire lawyers to do this type of work. The suggestion that they can go to civil court is not a realistic one.
Finally, it is a parallel debate to one that was going on in the Justice committee recently about DNA data banks, the concern about the Charter and whether or not in that case, the DNA data bank legislation and certain amendments that have been suggested would survive a Charter challenge. It was raised with the minister recently that there seems to be a Charter concern that all the lawyers will come. Everyone says the Supreme Court will do this and others will say it will do that.
In a recent newspaper article, a Department of Justice lawyer was quoted as saying that they do not have any idea what the Supreme Court will do. That is an important point to make. The Justice committee, this committee, the House of Commons and all of us, we are not the Supreme Court. We should try to ensure that the legislation which is passed is as Charter-proof as possible.
I do not think we should back down from legislation in which we believe simply because we are concerned that there will be a challenge. Any legislation can be challenged. However, this committee is doing the best job it can. Certainly this committee is attempting to do what it can to ensure that this legislation is Charter-proof. The Charter is there to protect everyone, not just offenders.
I am sure Mr. Rosenfeldt would like to make a few comments. Then we would be happy to take questions.
Mr. Gary Rosenfeldt, Canadian Resource Centre for Victims of Crime: Honourable senators, I should like to state that last time I appeared before this committee I left here with a real sense of frustration because it seems that every time we want to talk about victims of crime we end up talking about the rights of criminals and what they are entitled to. I mean no disrespect to members of this committee and the questions that are asked, but on a daily basis we deal with dozens of victims cross-Canada who are suffering as a result of the crime that was committed against them.
After I appeared before this committee, I go back and speak to these people from across Canada who are victims of all kinds of crime and who are well aware that I have spoken to this committee. The response I seem to get from all these crime victims who are not experts on the Constitution, the Berne Convention, copyright laws or anything else reflects the frustration that they feel that every time we raise the subject of victims, we end up talking about the constitutional rights of offenders, the people who commit crimes.
Another frustration is directed at the amount of time this committee spends discussing people, like Guy Paul Morin, who were wrongfully convicted and the rights that those people have to write a manuscript that they could possibly sell in the open market and then use the money to try to obtain their release from prison.
No one wants to see a person wrongfully convicted, but we are talking about criminals profiting from their crimes. We are not talking about those who have been wrongfully convicted.
If Canadians are being wrongfully convicted, perhaps this committee should look at ways to stop this from happening. Do we have to put people into prison for 23 years and then give them a right to write a manuscript from which they could use the profits to help get them out of prison? I do not think they should be convicted in the first place. Perhaps this committee should look at overzealous police departments and Crown prosecutors in this country.
When it comes to writing books, I do not think we should allow the wrongfully convicted to have a pen and paper to write a manuscript to get themselves out of prison.
If I seem a bit frustrated, I am nevertheless pleased to be back before the committee. However, I really felt I had to express some of the frustration that crime victims across Canada are feeling with regard to the delay of this bill in the Senate.
We seem to be going to immense lengths to protect the rights of criminals in this country. The victims once again seem to be forgotten in this process. For every criminal there is at least one victim.
There are many more victims than criminals. Clifford Olson left families from coast to coast suffering as a result of his crimes. He is one person, but hundreds upon hundreds of people have been affected by him and his crimes. Everyone of them gets up every morning and thinks about the possibility of turning on a television set and seeing him there. This may happen anyway, even with the passage of this bill. This is something we live in fear of daily.
I came home one day and my daughter was watching a convicted murderer on television describe in detail what he did to his victims in Chicago. It was one of the most repugnant things I have seen. My heart went out to the families of the victims he left.
I am not a constitutional lawyer, but if there is a problem with this bill constitutionally, it will not stand up. There is also the Berne Convention and there are copyright laws. Many states in the U.S. have passed similar laws to this bill, and many of them were challenged, rewritten or amended.
We are issuing a plea from victims across Canada for the Senate to simply pass the law that was approved by a majority in the House of Commons. We do not see many bills that go to a majority vote in this country. Most Canadians support this bill; the House of Commons supports this bill.
I am frustrated as to why we are spending so much time and effort in the Senate. If the law will not stand up, fine. We will deal with the Supreme Court and make changes in the future. At this point, every day that this bill sits in this house causes more pain and frustration for crime victims across this country.
The Chairman: I cannot begin to imagine what you must go through every day, Mr. Rosenfeldt. I am sure the rest of my colleagues feel much the same way, and our hearts go out to you.
I must tell you that this committee is proceeding as expeditiously as it can. We have been held up by the fact that Mr. Wappel has brought in amendments to his own bill, which has again put us back into hearings.
Senator Gigantès: I associate myself with our chair in saying that I too cannot possibly feel what you feel, although I empathize with you. However, you would like us to produce a workable, effective result. Supposing there was a bill before us saying that the government should assist victims of crime with the costs of civil suits to capture profits accruing to a criminal from the sale of a book describing the crime. If we pass that bill, it would be a constraint upon the government to be doing something that is doable. The Supreme Court could not knock it down. It is the right of the government, if that bill passed, to spend money that way. The bill we have before us will not produce a penny for the victims -- it will not.
If your purpose is to prevent the publication of a book by someone like Paul Bernardo, there are other laws that can prevent the publication of such a book. That is one thing: suppressing a book by an odious criminal. However, capturing the profits from a book he might write and sell -- and it is very doubtful he would ever get it published -- will not be achieved by this bill.
It is as if you are asking us to send you into battle with an unloaded gun. We are saying that we feel that this bill will not achieve what you would like. It is not that we do not want you to achieve what you want.
What is the point of passing a bill which, in accordance with all the experts, such as Senator Beaudoin, will come up against major obstacles? It will almost certainly be knocked down. What is the point of giving you such a bill?
Mr. Rosenfeldt: Senator, I sincerely appreciate your comments and the chair's comments with regard to our personal situation. I agree with what you are saying and I respect that -- believe me, I do.
We have seen a number of states pass laws. We have seen them challenged. We have seen changes made in the Son of Sam law and other legislation. We are not experts on legislation, obviously. However, this issue is of prime importance to us. We are trying to deal with the fact that criminals can profit from the murder of our children and/or tell their story and use it for profit.
About 10 years ago, after my family lost our Supreme Court case with regard to taking the $100,000 away from Clifford Olson, beyond hiring a lawyer and going all the way to the Supreme Court of Canada, my wife and I contacted the Government of Canada. The Honourable Joe Clark at the time made arrangements for my wife and myself to travel to New York City. We paid our own way. The Government of Canada simply gave us an open door to the United Nations and its Social and Economic Affairs Committee. We begged and pleaded with that committee to ask all member states to pass laws to stop criminals from profiting from crime. It affects us personally, the fact that Clifford Olson had actually profited from the death of our child, and that he continues to profit.
We are looking for something to come out of this committee. If there have to be more amendments to the bill, so be it, but we want something that stops criminals from profiting from the death of our loved ones.
We cannot stop criminals from writing. If Olson wants to put his memoirs on the Internet, I guess that can happen and I cannot stop it. However, I know the will is there from the people and from the House of Commons. I believe as well that many senators support the notion that Clifford Olson and others like him should not profit from their crimes. It is as simple as that. I believe that this bill, from what I have been told, will prevent the criminal from actually reaping the profits of describing their crimes to the public.
Senator Gigantès: There will not be any profits.
Mr. Rosenfeldt: Well, that is great.
Senator Gigantès: There will not be anything for the victims.
Mr. Rosenfeldt: Victims do not want anything. The last thing we want is money earned by a criminal. Believe me, that is true.
Mr. Sullivan: The families do not want the money. They want to make sure that Olson does not profit from his actions again.
You mentioned all the experts who have said that this bill will not work. A couple of copyright lawyers accompanied Mr. Wappel to this committee. They could be classified as experts, and they supported the bill and said it would work. There are arguments on both sides by the experts on copyright laws.
The main point is that the bill does not mention victims. I do not know that Mr. Wappel has given any indication of what he thinks could be done with the money at some point.
He stressed before the Justice committee that it could be used for educational efforts with regard to youth violence and those types of things. Whatever the money is used for -- and it is to be hoped that it will be used for a good program -- the families do not want it.
Senator Gigantès: Son of Sam was struck down by the Supreme Court of the United States. Under the revised version, there is an agency of the State of New York which gives advice -- not even financial help -- to families of victims on how they can proceed through civil courts. That is all that is left of the Son of Sam legislation in New York, which first initiated this type of legislation.
There are other considerations. I hate to have to do this, but there are precedents that can be set. Suppose that, under the original version of Mr. Wappel's bill, the copyright of Michael Harris, who wrote the book about Donald Marshall, was confiscated. That is setting a precedent for confiscating property, and not only the property of criminals.
We cannot look at a piece of legislation in isolation. The legal system is made of interconnected pieces. It is like a house of cards. If you remove one, the rest tumble.
It is not that we do not empathize with you; we do, but we would like someone to come up with something that would work. This would not.
Mr. Sullivan: According to my reading of the bill, if Michael Harris wrote a book about Donald Marshall or any other offender, the bill would not target the profits he personally would make from that.
Senator Gigantès: Under the first version it would.
Mr. Sullivan: What about with the amendments?
Senator Gigantès: This version of the bill would not. However, on the other hand, it is asking the federal government to enter a provincial jurisdiction. This is not a bill that should be passed by the federal government. It is a bill that should be passed by the provinces.
Mr. Sullivan: It amends federal legislation, does it not?
Senator Gigantès: The federal legislation on copyright seizure is seizure of property, and property rights are provincial. We cannot deal with the seizure of property because it is a provincial issue. We happen to be in a federal state. We already have enough problems with our Constitution on federal-provincial relations. We cannot legislate on something that belongs to another level of jurisdiction.
Mr. Sullivan: Does the federal government not have jurisdiction to confiscate the proceeds of crime?
Perhaps I am asking more questions than we are answering.
Senator Gigantès: This is a very instructive exchange.
Yes, we have legislation to confiscate the proceeds of crime, but that is under criminal law. We are not talking of confiscating the proceeds from the sale of a book. We are talking of confiscating the property, which is the copyright. The confiscation of property -- not proceeds -- is provincial, is it not?
Senator Beaudoin: On this whole debate you speak very clearly. If I understand you correctly, you would not be interested in having the state, either at the provincial or the federal level, compensate the victims of crime.
Mr. Rosenfeldt: This is not what it is about.
Senator Beaudoin: You said that very clearly and I take note of that. You say the only thing you are interested in is that a convicted criminal shall not receive anything for writing about his crime. That is exactly what you want?
Mr. Rosenfeldt: Exactly.
Senator Beaudoin: You are not interested in anything else because you have been the victim of a terrible crime.
That is our difficulty, of course. I thank you for saying very clearly what you are thinking.
At the beginning of this process, I told Mr. Wappel that his bill would not help the victims of crime because there would be no proceeds and they would not sue. You said a few moments ago that you are not interested in suing, at any rate.
Are you interested in having the state indemnify victims of crime? I think the state should do that.
Mr. Rosenfeldt: I believe that most provinces have criminal injuries compensation boards. It is their responsibility to compensate victims of crime.
Senator Beaudoin: Yes, I think we should do that at the provincial level.
Mr. Rosenfeldt: I firmly believe that.
Senator Beaudoin: But you say that is not our interest in this case.
Mr. Rosenfeldt: No, it is not.
Senator Beaudoin: If a criminal writes about his crime or crimes, he should not benefit from that, and this would be based on criminal law.
Mr. Rosenfeldt: We believe that the criminal is further exploiting the victim for his own benefit by writing about the crime. He is the only person who can describe in detail the horror my child went through when he was murdered. Please remember that for the last 16 years I have been fighting to stop the man who murdered my child from profiting from it. He has been trying to do so. He has written books and made videos and offered them for sale.
He has written to me personally describing in detail what he did to my child and the last words of my child prior to him smashing his head in with a hammer. He has put that in print and he is trying to sell it. He is selling serial killer trading cards. He is building his own infamy. He signs his letters "The Beast of B.C." He is doing that on purpose to build up his image in the public in order to get more money.
He knows that he will probably have to spend the rest of his life in prison, but money changes the way you live in prison. It buys you drugs; it buys you everything.
He is trying to further exploit us victims. He cannot harm our child anymore, but he has continued to harm us for the last 16 years. That is what we want to stop.
If Bill C-220 is passed, he can continue to write; there is no question about that. However, future victims will not have to go through what we have gone through.
Senator Beaudoin: I sympathize with that.
Mr. Rosenfeldt: I cannot stop him from putting on the Internet the story of the pain our children suffered prior to their murder. However, the key to it all seems to be the profits. That is what he works towards. His goal is to profit from putting this stuff in print. He has tried to copyright it; he has tried to get it published. That is my concern.
Mr. Sullivan: It is important to note that there have been some very important pieces of work created by people who have committed crimes. They were important contributions to society. Mr. Wappel's bill aims to target works which aim to exploit the crime rather than those that simply mention it as part of a life story. It targets the types of works to which Mr. Rosenfeldt has referred.
Senator Joyal: I apologize to our witnesses for the fact that I will have to leave the room after my statement.
The issue of victims in our system is a major preoccupation of ours. I happen to be the son of a father who was subjected to a crime. We have certainly not, in any comparative way, gone through the pain and sorrow that you have experienced. However, my father had to stop working for a year. He has been marked for the rest of his life. He is now 82. In his mind, it is as vivid as if it had happened yesterday.
When we deal with those issues, it is very difficult for us to make a distinction between our own situation and the wrongs that we want to correct. I can assure you that the principle that persons should not profit from accounts of their crime is shared by all the members around this table. Some of them share in it perhaps more deeply than some others.
There is in our system a Uniform Law Conference, which is seized with that very objective. That conference has the objective of grouping together with the Attorney General of Canada and the provincial attorney generals. We want to deal effectively with the objective which you pursue and which is shared by many of us, so we must be sure that our solution will be a realistic one. We certainly do not want to make you come back here in a year or two. We would rather have a final solution and not go through this exercise again. No one wants to go through this many times.
We need a permanent solution. In that context, we are preoccupied with all the numerous legal implications at both the federal and provincial levels. We know as we go through this process that we also want to alleviate our sorrow. We do not want to be told that there are international conventions and federal, provincial and municipal jurisdictions. We just want to seek a permanent solution.
That is why we are here around this table. We are trying not to act instinctively. We do not want to cut off our arms in order that they will not be painful anymore. We want to face the situation for you and for all the people who have gone through this and for others down the road who will be in the same situation, unfortunately.
I certainly would not like you to leave this room thinking that we will not do our jobs. Madam Chairman and all the senators here and all the members of Parliament, I am sure, want to address this issue in a permanent and definitive way. I am sure that the civil servants and the witnesses whom we have heard from the Department of Justice understand that very well. If in our consciences and minds, we have come to the conclusion that this bill does not meet our requirements, we can certainly, as a committee, recommend that this issue be studied further. We do not want to simply say to you that we are sorry, but the legal issues do not meet your objective. We, too, have some responsibility. We, too, have families. We, too, want to correct the situation, sir.
Mr. Rosenfeldt: Thank you, Senator Joyal. I sincerely appreciate you sharing with us the pain that your family has suffered as a result of a criminal act. I would like to apologize if I suggested in any manner or form that this committee was not concerned about victims. I know you are. I sincerely appreciate what you and your family have gone through and the concern of this committee with regard to crime victims.
I was simply trying to express a frustration that we as victims have gone through in the last number of years with, first of all, Tom Wappel's bill. We felt it was so positive and so good, but, again, we are not constitutional experts and lawyers. My heart goes out you to and your family for what you have gone through, believe me.
Senator Joyal: Mine is with you, too, sir.
Senator Lewis: One of our problems is the need to separate the several concerns. We have to separate our powerful feelings and our consideration for victims from the objective, which is to suppress the criminal's description of the activities. I appreciate that you are concerned not about recovering money from the criminal but about preventing the criminal from profiting from his act by publishing his description of it.
Our concern -- and possibly this is a different aspect -- is whether this is the best way to achieve what would be the suppression of any works that the criminal might undertake. If that suppression was possible, and I am not suggesting that it is, would that achieve your objective?
Mr. Rosenfeldt: Yes, it would. Our concern is whether or not we could actually do that. If a criminal has access to a piece of paper and a pencil, a typewriter or a computer, he can write a story. Our feeling is that you should take away the possibility of profit. Let us be honest about it; the only thing that sells is vivid descriptions of the criminal act itself. That is what people pay for.
Senator Lewis: It is a reflection on society, too.
Senator Gigantès: Those are sick people.
Mr. Rosenfeldt: Even with the Internet nowadays, these people are not simply out to see pictures of nude children. If you can commit a heinous act against a child with an adult, these people get into that sort of thing. They like and want and will pay money for that. When Clifford Olson describes in detail what he did to my child, people will pay money for that sort of thing. That is what they want.
Senator Lewis: That should be the objective, to try to stop that.
Mr. Rosenfeldt: Exactly.
Senator Lewis: We can speculate about a criminal who commits an act, goes to jail and, years later, we hear that he is writing a book or making a public work describing the crime for profit. Then again, it could be some media person who looks up the criminal after he comes out of jail and asks to interview him in return for some pay. This would be along the same line as what you described. He would then be profiting from the crime.
Mr. Rosenfeldt: Yes. Clifford Olson's only claim to fame is that he murdered 11 children. That is the only reason why the media are interested in him.
A number of years ago, probably about 1986, there was a case in Red Deer where the public was appalled to find out that CBC television had paid $500 to an inmate in an institution who as a drunk driver had killed someone. When it leaked out to the public that CBC television had done this, the people of Alberta were appalled. It made the news, but I do not think anything ever came of it. It is the same sort of thing we are talking about here, where the media can actually go into a prison. That criminal's only claim to fame, the only reason that CBC television was willing to hand him five $100 bills in a prison, was that he killed someone when he was driving drunk.
Senator Lewis: It is the same principle.
Mr. Sullivan: From discussions with Mr. Wappel about his bill, I know it was his intent to capture those types of circumstances. It would not be just books, which is what we have talked about, but it would be those types of situations where people sold their story to movie companies, for example.
Senator Lewis: It is a very difficult situation.
Mr. Rosenfeldt: It really is. Even with Mr. Wappel's bill, we cannot stop Olson and people like him from talking to the press and getting money. However, our concern for the victims of that drunk driver is a bit different. I do not want him describing the look in the eyes of his victims as they died from being hit by him. That is where the problem is. That is exploitation of the victims.
Senator Lewis: The question is whether this bill will achieve that.
Senator Gigantès: The difficulty we face is how we deal with Olson, who not only was convicted but who confessed to his crimes. There was no doubt about it because he told us where he buried the children. How do we deal with a convicted Donald Marshall or a convicted Guy Paul Morin? How do we differentiate? How do we pass a law that will allow someone who is wrongfully convicted to defend himself?
Mr. Sullivan: We probably had this discussion before. We go back to our point that if Guy Paul Morin had written a book while in prison under the conviction of murder of Christine Jessop, his book would have been about, I presume, the feelings of being wrongfully convicted, of the possibility of spending the rest of his life in prison, maybe his speculation on what had actually happened and his story about how he was not there. It would not have been about the murder of Christine Jessop.
Senator Gigantès: Donald Marshall saw the crime.
Mr. Sullivan: He saw the crime but he did not commit it.
Senator Gigantès: He could describe it. Since he could describe the crime, even though innocent, that test, that someone cannot describe a crime unless he or she has actually committed it, falls. Donald Marshall saw the crime, and because no one believed his version of the crime that he saw, he spent 11 years in prison.
Mr. Sullivan: No one would have believed Guy Paul Morin's version either. It is a very fine issue. I think Donald Marshall's book would have been very similar to what Guy Paul Morin would write: "I have been wrongly convicted and I will spend the rest of my life in jail for a crime I did not commit. This is what happened. I saw him stab the victim." Again, I do not think Mr. Wappel's bill would capture a book like that.
The Chairman: I believe we will call an end to this questioning now. I thank you both for attending.
Our last witness will be Ms Marian Hebb, who is representing both the Law Union of Ontario and the Writers' Union of Canada.
Ms Marion Hebb, Member, Lawyer, Law Union of Ontario; Legal Counsel, Writers' Union of Canada: Thank you very much for the opportunity to appear before you today on behalf of the Writers' Union, the League of Canadian Poets, the Playwrights' Union, the PWAC, the Writers Guild, UNeQ and SARDEC -- organizations representing over 5,000 professional writers -- as well as the Law Union of Ontario. I am making only one presentation, and while I may be wearing seven hats, I think they all fit the same head.
First of all, I would like to say that our opposition to this bill is not intended in any way to be unsympathetic to victims and the groups that represent them. However, we do not see how this bill helps them in any way, and they are deluded if they think it does. This bill does not provide a nickel to any victim or victim's survivor and indeed it will make it less likely that such persons will receive money from authors who have been convicted of serious crimes.
I noted what the previous witnesses said, but even if some victims are not interested in the proceeds, in other instances victims' families will want to sue, and if there should be some money from books or articles and so on, this bill will make it less likely that those people will be able to obtain damages.
With the amendments proposed by Mr. Wappel, proceeds of writing would no longer be proceeds of crime, and we consider this recognition significant. However, the bill still metes out an additional punishment that is not inflicted on any convicted person except for a convicted writer. Copyright is still confiscated from the criminal who writes about his or her indictable crime, depicts it in a drawing or even composes a song about it. This additional penalty is triggered by writing or creating, and not by crime. This is still the case under the bill as it is amended, and it is wrong.
While the bill appears to have been narrowed by the amendments, in that it no longer deals with hybrid offences under the Criminal Code unless they are proceeded against by indictment, it is not in fact more narrowly focused because it has now been extended to apply to all legislation which contains indictable offences, and not just indictable offences under the Criminal Code. There are indictable offences under a number of acts, such as the Income Tax Act, the Bankruptcy and Insolvency Act, the Food and Drug Act, even the Copyright Act, and also under the legislation of other countries.
The amendments now provide a royalty-free licence to the publisher, so Her Majesty will not profit financially from this legislation. But this does not cure the fundamental flaw in the legislation. Copyright is still expropriated from some persons. This is not remedied by a royalty-free licence to prospective publishers. Curiously, although an affected work could in theory be published, it could not be photocopied or otherwise reproduced because the royalty-free licence does not cover the actual act of reproduction. With respect to this, I would refer you to a submission from the joint committee of the Canadian Bar Association and the Patent and Trademark Institute.
The international copyright conventions establish substantive minimum rights which must be accorded to authors. Section 9 of the Berne Convention states that legislated reproduction rights or exceptions from copyright must "not conflict with the normal exploitation of the work" and must not "unreasonably prejudice the legitimate interests of authors." As you have been told earlier today, this is Canada's obligation through adherence to NAFTA and the TRIPS agreement, which is an appendix to the agreement establishing the World Trade Organization. The Universal Copyright Convention, to which Canada also belongs, requires contracting countries "to provide for the adequate and effective protection of the rights of authors..."
Scholarly writing about both of these texts makes it clear that an important element of them is the author's economic interest or compensation -- that is, his or her right to receive royalties. Bill C-220 will put Canada clearly in breach of these obligations. There is a presumption that countries that adhere to these conventions will comply with their terms and therefore it will benefit their own nationals, although their own nationals cannot benefit from the dispute mechanisms that are provided under the TRIPS agreement in the WTO.
In addition to contravening Canada's international copyright obligations, the economic penalty which results from this bill is an unconstitutional encroachment on freedom of the press.
In striking down the original Son of Sam legislation in New York state in 1991, the Supreme Court of the United States used reasons which we think should apply equally in Canada. I will read a portion of that judgment:
A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech... the government's ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace... The Son of Sam law is such a content-based statute. It singles out income derived from expressive activity for a burden the State places on no other income and it is directed only at works with a specified content.
The House of Commons has sent you a bill that does exactly that. If this legislation is passed by the Senate, it will be an encroachment on the rights and freedoms guaranteed by Canada's Charter. The original Son of Sam legislation was a good deal broader than the current Ontario provincial act. The legislation currently in place in Ontario was modeled largely on the legislation that was enacted in New York after the Son of Sam bill had been struck down.
Additionally, if you pass this law, you will increase the likelihood of the story of another innocent convicted person such as David Milgaard, Donald Marshall or Guy Paul Morin from not reaching the public.
I would submit to you that if even one more such person were to remain in prison who might obtain redress with the help of articles or a book, this would be sufficient reason for you to reject this law.
The amendments now proposed are intended to allow such a story to be published, but they do not deal with the fact that they deprive a convicted author of payment or that they enforce a publisher or co-author to deal with the Crown as the owner or co-owner of the copyright. This may well result in material not being written or published.
The writers' organizations challenge the supporters of the bill to identify any already published work which, in their view, should have been treated in the way in which Bill C-220 proposes to treat some works in the future. I submit to you that the feared harm which is being put forward as justification for this bill is hypothetical. I do not mean that the crimes are hypothetical -- there is terrible violence and victims pay a terrible price -- that is not what I am saying. I am asking what is the feared harm in connection with the subject matter of this bill? Which existing books or articles should not have been published? Who are the writers who should not have been paid? What pressing social ill or problem is addressed by this particular legislation?
In conclusion, I would submit to you, on behalf of the writers and lawyers I represent, that this legislation, whether or not it is amended, will prevent the publication of books, plays, articles and even cartoons and letters, whose content and ideas would be in the public interest.
Senator Gigantès: You make a legally persuasive case. How do we answer the person whose child was killed by Olson and who says he does not want Olson to be able to say anything about this to anyone? He does not want Olson to be able to put on the Internet how he bashed that child's head in. He does not want Olson to be able to sell his version of baseball cards in which he depicts himself as the worst serial killer in the world, and he does not want Olson to be able to circulate videos in which he describes not only those crimes but also how to commit such a crime and to make money therefrom. They are asking us to suppress the expression of someone like Olson.
However much I respect freedom of expression -- I am an author myself -- why should we not suppress someone like Olson's right of expression? How do we differentiate between someone like Olson and Donald Marshall? Can you help with us that?
Ms Hebb: I can try. There are other laws that deal with this. I do not know if Mr. Olson has access to the Internet. I would be surprised if he did. I know he has done some things through his lawyer, however, I do not know to what extent. I have heard the rumours. I do know that a number of writers have refused to assist Mr. Olson in producing a book.
There are obscenity laws which may deal with some of the things that you mention, if they fall afoul of other laws in the Criminal Code.
If you tell someone how to murder someone, that is incitement to commit a crime. We also have sections in the Criminal Code that deal with that. The things that you mention are actually things that can be dealt with otherwise. They are not things that should be dealt with by this bill. I do not see what passing this bill will do to assist with any of the problems you have mentioned.
Senator Gigantès: Do my lawyer friends around the table agree with what the witness has just said?
Senator Beaudoin: After having heard what the two previous witnesses said, it is not only a question of money that is involved. In other words, if I followed their testimony, victims do not wish to hear about the murder of their son or daughter. Even if the person is making no money at all, they would still be against the criminal's right to write. For them, it is completely unacceptable. They do not want to hear any more about the crime. I must confess that I understand them completely.
What is the solution? They select the one alternative that comes to their mind immediately: Stop that person from writing; stop that person from saying this, this and this. I understand that because the pain is so deep in their mind.
What can we do with that? It is difficult. As a legislative house, we must follow the laws, the Constitution, the Charter, the division of powers, et cetera. It is difficult, but after all, we may solve that problem. What we cannot do is find a good remedy. We may be convinced that Bill C-220 is not the proper remedy. We may be convinced of that, but the families of victims think otherwise. At least for them, this bill stops a criminal from talking about a crime that is so terrible for them. I have the greatest respect for that.
This is perhaps the first time a committee has had a problem like this. It is said that a criminal may write about or make a video about the crime. However, we do not want the person to profit from the crime. That is the first time I heard that. People say, "Well, they are in jail. What is the use of money in jail?" They said that it makes them powerful.
Senator Gigantès: The victims have also said that they do not want the criminals to write, but the bill allows them to write. The bill does not help them by suppressing.
Senator Beaudoin: Our difficulty at this committee is that we now find ourselves in a position of disagreeing with Mr. Wappel's bill because it is against the Charter and the division of power. We are in the very strange position now of having it on our shoulders to solve the problem in itself -- not the bill, but the problem in itself. We are now in a position of saying that we will be making a bill ourselves.
The Chairman: No. I would remind senators here that, when we are through with our hearings, we have three options: We can pass this bill without amendment; we can pass the bill with amendment; or we can recommend that the Senate not proceed with the bill. We cannot, in my view, solve the problem that you are outlining. We have three options only.
Senator Beaudoin: We have no right to do that.
The Chairman: Unless we want to bring in our own bill.
Senator Moore: Madam chairman, I like Senator Joyal's suggestion. Perhaps one way for the matter to be proceeded with satisfactorily would be a reference to the Uniform Law Conference. Can we not recommend that? Is that out of our purview?
The Chairman: We have a bill before us that we must deal with within the purview of the normal Senate procedures. We have not been given any further power than that. We are creatures of the Senate.
Senator Beaudoin: We can delay the bill and say that we plan to hear other experts. We can always do that.
Senator Moore: We could do it by way of motion in the Senate.
The Chairman: It is open to any senator at any time to proceed in that manner, but not with this bill.
Senator Beaudoin: Do you mean in a report?
Senator Moore: I mean that any senator -- you, Senator Joyal, whoever -- can bring in a motion --
Senator Gigantès: Or a private members' bill.
Senator Moore: -- directing that this matter be referred to the Uniform Law Conference at its next deliberation.
Senator Beaudoin: How can we do that?
The Chairman: In the Senate, not in the committee.
Senator Moore: As a individual senator, you can do that.
Senator Beaudoin: The bill has been referred to the committee, but we must report the bill to the house.
The Chairman: That is separate from the bill. On this bill, we have the three choices that I outlined.
Senator Beaudoin: With which I agree.
The Chairman: In addition to that, any senator at any time can make a motion in the Senate.
Senator Gigantès: All of us are still struck by the evidence given to us by the victims. We were told quite categorically that they are not interested in receiving money themselves. They are interested mainly in suppressing the expression of certain criminals. That is what they told us. This bill does not do that. On the contrary, it gives the copyright to Her Majesty. Mr. Olson can write a book, the copyright belongs to Her Majesty, and the publisher can get this book without royalties and publish it.
Ms Hebb: That is if Mr. Wappel's amendments are passed. In effect, his amendments may make the problem worse. In terms of his royalty-free licence, I believe, in fact, that he is shooting himself in the foot. The bill is unacceptable constitutionally, regardless of whether it is amended.
The Chairman: We are into debate on the bill itself. I would ask senators if they have any further questions of Ms Hebb.
Ms Hebb: May I respond to something that was said, in terms of the money? I do not understand why the victims are saying they are not interested in money. I believe their concerns are much deeper than that. This bill does not solve those concerns. Some victims are interested in money -- people who have brought harm to families have been sued by those respective families. That is why I am saying that this bill is not helping the victims at all. In fact, this bill, if passed, will hurt them. The money goes to the government if the first version of the bill is passed. If Mr. Wappel's amendments are passed, then there is no money changing hands. The person who has written the book has no money. If someone were to sue the person, they are less likely to get recovery unless the person already has independent means. Why bother asking for this?
Senator Gigantès: One of the victims said he and his family spent $100,000 paying lawyers to recover money from Olson, so he contradicted his own testimony.
The Chairman: He was trying to get $100,000 back from Olson. I have no idea what he spent.
Senator Beaudoin: The witness' point is well taken. They are not interested in having money. Others are. The bill goes against the freedom of expression, and they want to stop that freedom of expression in very important cases. We know that it is bad for thousands of cases. Obviously we are all in favour of freedom of expression. We have the three solutions you outlined.
The Chairman: This is what will be before us when we have heard all the witnesses. If there are no further questions, I thank Ms Hebb for coming to us, and I declare this meeting adjourned.
The committee adjourned.