Mr. Speaker, I am very delighted to participate in the debate on Bill C-205 which was introduced by the hon. member for Scarborough West. I commend the hon. member for all the hard work and detailed research he has done with respect to this bill, as he has done in other cases.
The bill proposes amendments to the Criminal Code and to the Copyright Act. I will take a few minutes to review and comment on the proposed amendments to the Criminal Code.
The bill amends part XII.2 of the Criminal Code so as to include in the definition of proceeds of crime, any profit, benefit or advantage gained by a person convicted of an indictable offence or by any member of his or her family from the creation of a work based on the offence. This amendment would extend to such profits, benefits and advantages the existing provisions of the Criminal Code respecting the search, seizure and restraint of proceeds of crime, as well as the provisions concerning confiscation.
The bill also provides that a sentence for an indictable offence is deemed to include an order that any work based on an offence is subject to a new section which this bill proposes to the Copyright Act. The amendment to the Copyright Act would have the effect of vesting in Her Majesty any copyright in a work that would otherwise belong to the convicted person which is based on the offence for which he or she was convicted.
I would like to state at the outset that I am extremely sympathetic to the motives which lie behind my distinguished colleague's efforts to amend the law in this area and to those who have spoken in favour of this change. The phenomenon of criminals writing or threatening to write accounts of their crimes in exchange for money or for other benefits is a relatively new thing in Canada.
The very idea that a criminal who has committed a violent act or a series of violent acts, such as in the Bernardo case, could actually benefit financially from the recounting of his or her criminal acts is extremely offensive to many. If the victims of those crimes are made to be subject to those accounts, are they not being victimized again?
It is therefore something which I believe should be addressed and I commend my colleague for attempting to do so through this bill. The real question that remains is how to achieve that goal without unduly limiting the expression of ideas in a free and democratic society.
The bill we have before us, and more particularly the amendments which my distinguished colleague proposes to the Criminal Code, contain certain fundamental difficulties. As I mentioned earlier, this bill would amend part XII.2 of the Criminal Code of Canada which deals with the proceeds of crime. It should be noted that part XII.2 of the Criminal Code contains a comprehensive and complex legal regime designed to seize, restrain and ultimately confiscate proceeds from the commission of enterprised crime offences or designated drug offences.
However, the moneys sought to be regulated by my colleague's bill are not derived directly or indirectly from the commission of a crime. On the contrary, they would be derived from a totally legitimate activity, writing a book or some other similarly legitimate activity. The simple act of writing a book is not in and of itself a criminal offence even if that book is a recounting of criminal activities for which the author has been convicted.
On the other hand, part XII.2 is meant to be engaged only when the proceeds are derived from the commission of a crime, which is simply not the case with the writing and publication of a book or selling the rights for a movie.
The proposed amendments to part XII.2 of the Criminal Code would subvert the purpose of this part of the code by enabling the use of the provisions of this part of the code to confiscate moneys earned from a non-criminal act. Even if one were to attempt to characterize moneys derived from the publication of a book written by a convicted person as the proceeds of crime, it would be almost impossible to justify trying to deprive moneys earned by a member of the convicted person's family who has not been convicted of anything and who has written a book about the convicted person's criminal activities.
Any regulation imposed on income earned by an individual from materials such as books, videos, movies or other activities relating to his or her criminal activities raises constitutional concerns, most notably concerns relating to the charter. Section 2(b) of the charter guarantees to all Canadians the freedom of thought, belief, opinion and expression, including freedom of the press and other media communication.
It has been suggested this bill's amendment to the Criminal Code does not infringe or restrict freedom of expression. It is argued that the regulation of moneys earned from materials relating to an individual's criminal activity does not impair freedom of expression in any way. The person is always at liberty to publish accounts of his or her crimes, but any money earned from the publication would go to the government.
If this line of argument were followed, regulation of the financial exploitation of criminality would not offend section 2(b) of the charter. However, there is another approach which results in a different conclusion. This approach to the characterization of this
legislative initiative would result in the finding of a prima facie breach of section 2(b) of the charter.
The approach holds that any attempt to regulate the moneys paid to a convicted person for publishing an account of his or her crimes amounts to a content based restriction on freedom of expression. The logic behind this approach rests on the fact that the only basis for depriving an author of any financial benefit from such an account of his or her crime is the content of the publication or expression itself. Typically the courts have found that content based limitations violate section 2(b) of the charter.
This initiative may also raise constitutional division of powers concerns. I mention this because the division of legislative powers established by sections 91 and 92 of the Constitution Act, 1867 assigns responsibility over certain activities to the federal government and other activities to provincial jurisdictions. Section 91(27) gives federal Parliament the exclusive power to enact criminal laws and laws relating to criminal procedure. Sections 92(13) and 92(16) permit provincial legislatures to enact laws affecting civil rights in matters of a private nature.
In the Queen v. Zelinski a bare majority of the supreme court held that an accused person could be ordered to compensate victims of crime provided that such an order was an element of the sentencing process in criminal proceedings. This case dates back to 1978. Subsequent jurisprudence suggests the creation of a civil right of action for breach of the criminal law is very likely ultra vires of Parliament. That is, outside the jurisdiction of Parliament.
It has been suggested the laws seeking to attach money earned from publishing accounts of criminal activity do not fit comfortably within section 91(27) of the Constitution Act of 1867, within the federal powers.
Part XXI.2 of the Criminal Code already contains a legal regime designed to assist in confiscating proceeds obtained as a consequence of the commission of certain designated crimes. However, the moneys sought to be regulated here have only the most tenuous relationship to the crimes of which the individual has been convicted.
Numerous publications have made significant literary, historical, criminological, sociological and psychological contributions to society. One such book, Go Boy by Roger Caron, which depicts a number of bank robberies the author committed, resulted in the author's receiving the governor general's award for literacy.
The act of writing a book, producing a movie, even when based on a crime, is not criminal. The moneys earned directly from those acts are sought to be taken away from the author. Simply put, it is difficult to characterize these as fruits or proceeds of crime. Rather, the financial exploitation of crime is more accurately characterized as the regulation of contractual rights, that is, within the legislative power of the province. This has been enacted in one province and certainly options are open for other provinces to to follow the lead of Ontario.