Financial Exploitation of Crime 1996


[17] The various options that are available to implement the purposes discussed above must be considered in light of the constitutional imperatives. In particular, legislation may have to be designed so that it can be justified under section 1 of the Charter. In order to do this, the legislation may have to be designed so that it does not:

1.provide that all of the money earned through the exploitation is taken from the criminal;
2.provide that money is taken from criminals of all types;
3.hold the criminal’s money for a long period of time.

1. Who Should be Covered by the Legislation

[18] Who should be the subject of the legislation depends, at least in part, on the particular purposes for which legislation is enacted. If, for example, the purpose of the legislation is to prevent criminals from exploiting their crimes in order to make a profit, it may be sufficient to restrict the legislation "persons who have been convicted of a criminal offence". It should not be necessary, in the vast majority of cases, to make those who have only been accused of committing crimes the subject of the legislation, since most people are unlikely to sell their story about the crime while still maintaining their innocence in the criminal courts.

[19] Moreover, if the legislation is consistent with its purpose, the legislation should expressly state that if a person is acquitted of a crime by a court, or if the charges are otherwise dismissed or withdrawn, that person is not covered by the terms of the Act. The person may still be found liable in a civil action, because of the lower burden of proof, but that action should not be the concern of special legislation designed to hinder defendants merely because they have once been charged of the crime. Similarly, the legislation should not cover third parties who write about a crime since, not having committed the criminal offence, there is no possibility that that person could be civilly liable.

[20] The more difficult problem is with regard to those persons who have been found to be not criminally responsible on account of mental disorder or not fit to stand trial. The similarity between these two circumstances is that the person who is accused of committing a criminal offence avoids legal sanction because of a particular mental state. However, it is suggested that that mental state not be the determining factor. Since in arriving at the conclusion that a person is not criminally responsible on account of mental disorder, the judge or jury actually make a finding that the accused has committed the act or made the omission, 22 there does not seem to be any reason why a civil court could not use that conclusion as determinative of civil liability. On the other hand, however, no such determination is made with regard to someone who has been found not to be fit to stand trial. In the absence of that finding, it is suggested that legislation be designed so that it does not cover persons in this situation. There are two reasons why this is so. First, in the absence of a finding that the criminal committed the act, that finding would have to be made in any event at a civil trial. Once the victim(s) has a civil judgment against the person found not criminally responsible on account of mental disorder, the normal execution procedures can be used to ensure that, to the extent of the judgment(s), the criminal does not profit from his or her crime. Second, given the mental state of those who are found not to be fit for trial, it is very unlikely that such persons would later seek to exploit the crime so as to profit from it.

[21] I f the legislation has a broader scope, that is to assist victims rather than merely to prevent criminals from profiting from the crime, then the types of persons covered by the legislation could be similarly broadened. Rather than merely preventing criminals from profiting from their crimes, the legislation could logically also include those who have been accused of a crime since whether or not they are found guilty in the criminal arena they may be later found to be liable in the civil sphere. However, if legislators were really interested in assisting victims, then they would also include those who have been accused or found to be guilty of provincial offences (so long as those offences have caused harm to a person) and people who have committed crimes and provincial offences but have not been charged. 23

[22] Whichever purpose a legislator adopts for its legislation, there does not appear to be any need to include, as the Ontario Victims’ Right to Proceeds of Crime Act, 1994 24 (attached as Appendix A) did, a reference to spouses and other relatives. Clearly these references were included out of an abundance of caution to ensure that the criminal could not, as Clifford Olson did, assign to his spouse the rights to receive the financial benefit from Olson’s recollection of his crime. The problem not only is that this type of provision is inconsistent both with preventing criminals from profiting and with helping victims, but that it could operate to work a grave injustice. For example, if a woman is the victim of spousal abuse and writes about it after her husband has been tried and convicted in a criminal court, the Ontario legislation will operate so as to keep all the earnings on her recollections for at least five years. If what the legislature really wants is to stop a criminal from trying to avoid the provisions of the legislation, all that is needed is a prohibition against assignment, with the penalty either being: (1) a provision that deems all money earned through the assignment to be the money of the criminal; (2) a fine, large enough to prevent most assignments; or, (3) the provision that the assignment is voidable on the application of an injured party or the Attorney General.

[23] It is recommended that:

1. only those people who have actually been convicted of a criminal offence, including those who have been found to be not criminally responsible on account of mental disorder, be subjected to legislation preventing the exploitation of crimes.

2. people who have only been accused of crimes, people who have committed crimes but have not been charged, relatives, and persons found not fit to stand trial, not be subject to the legislation.

3. that a provision be included to ensure that those who are subject to the legislation cannot avoid it by assigning their profits to some third party.

2. What Offences Should be Covered

[24] If, as noted above, a decision is made that the purpose of the legislation is to assist victims, then it naturally follows that all offences that cause harm, whether they are criminal in nature or provincial offences, should be included within the legislation. However, if the purpose of the legislation is to prevent criminals from profiting from their crime, then a further decision may be made as to whether the legislation should seek to prevent criminals from profiting from crimes of all types.

[25] This issue arises because of a further examination of the purposes of this legislation. As was noted above,  25 legislation in the United States was adopted as a result of the outrage that occurred when the Son of Sam received money for relating the stories of his crimes. A similar outrage occurred in this country when Clifford Olson received money for telling the police where eleven bodies were buried. 26 Finally, anticipating the response of a salacious press and public, people have expressed alarm that Paul Bernardo and Karla Holmolka may financially benefit from the re-telling of their particularly gruesome crimes.  27 In short, the outrage that people have expressed when criminals have financially exploited their crimes has been reserved for those people who have committed particularly heinous crimes.

[26] This conclusion is confirmed by the fact that there have been a number of publications in Canada and in the United States where criminals have written about their crimes.none of which have been attended by public outrage. The following is a list of some of the most important Canadian publications.

1.Roger Caron, Go-Boy (McGraw-Hill Ryerson Ltd: Toronto, 1978). On this voyage of self-discovery, the author depicts a number of bank robberies that he committed.

2.Micky McArthur, I’d Rather Be Wanted Than Had (Stoddart Publishing Co. Limited: Toronto, 1990), depicting various robberies and assaults.

3.Victor Malarek, Hey, Malarek, (Macmillan: 1984). In the course of describing the difficulties of his childhood, the author also described how and why he robbed a grocery store.

4.P. Starr, Tempting fate: a cautionary tale of power and politics, (Stoddart: Toronto, 1993). The author describes how she came be convicted of fraud, breaches of trust, and breaches of the Election Finances Act.

5.Evelyn Lau, Runaway[:] Diary of a Street Kid (Harper Collins Publishers Ltd.: Toronto, 1989). The author describes how she went from being an honour student to a prostitute and drug user.

6.Francis Simard, Bernard Lortie, Jacques Rose and Paul Rose, Pour en Finir avec Octobre (Stanké: Montréal). In addition to describing some of the motivations behind the formation of the F.L.Q., the authors describe how two people were kidnapped and one of them ended up being killed.

7.Julius Melnitzer, Maximum, Minimum, Medium: A Journey Through the Canadian Prisons (Key Porter Books, Toronto: 1995). The author alludes to his defrauding of various people, and banks, of millions of dollars.

Rather than being greeted by an outraged public, many of these authors have received public awards. In fact, because of Go-Boy, Roger Caron received the Governor General’s Award for Non-Fiction. Evelyn Lau’s Runaway received numerous awards and was made into a movie by the C.B.C. Victor Malarek is now a respected investigative reporter on the C.B.C.

[27] The difference between these books and those forms of exploitation that outrage people is, it is submitted, in the types and numbers of crimes committed. Once that distinction is accepted, a choice has to be made as to whether all criminals have to be treated in the same manner or whether the legislation should be designed to prevent only those criminals that have committed the most egregious crimes from exploiting their crimes.

[28] Of course, it must be noted that by engaging in this type of distinction, legislative drafters must seek to define the difference between good literature, or literature that will not provoke an outrage, and bad literature; a task that those in the United States who sought to define pornography found to be impossible. Whatever distinction is accepted, it must be reiterated that the constitutional law of this country may demand that legislative drafters at least try to draw a workable distinction¾however hard it may be to apply in the end. Since the Charter requires that the section 2(b) rights of criminals be minimally impaired, that might mean, as noted above, 28 that the legislators are bound to prevent only those criminals whose crimes give rise to moral outrage from financially exploiting their crimes to make a profit.

[29] Using the distinctions that are found in the Criminal Code, there are a number of distinction that could be drawn between offences that should and should not be covered. For example, on decreasing scale of the number of criminals included, legislation could be limited to:

1.those who have been convicted of an offence that carries a penalty of five or more years imprisonment;

2.those who have been convicted of an offence and actually sentenced to five or more years imprisonment;

3.either of the two options above, limited to people who have committed violent crimes against a person;

4.those who have committed a serious personal injury offence, as that phrase is used in the dangerous offender provisions of the Criminal Code, including acts of high treason, treason, first degree murder or second degree murder, whether or not the offender is actually found by a court to be a dangerous offender;

5.those who have actually been found to be a dangerous offender.

[30] If legislation is going to include people who have been found to be not criminally responsible on account of mental disorder, then that inclusion eliminates the second and fifth options since the Criminal Code does not provide a sentence for such people. Moreover, since the first option includes most of the authors referred to above, it is suggested that it is too wide.

[31] This leaves the third and the fourth option as acceptable ways to define the types of offences that should be covered by the legislation. Accordingly, it is recommended that, at the minimum, legislation be drafted to apply to who have committed a serious personal injury offence, as that phrase is used in the dangerous offender provisions of the Criminal Code, including acts of high treason, treason, first degree murder or second degree murder, whether or not the offender is actually found by a court to be a dangerous offender.

3. The Description of the Crime

[32] Just as it may be desirable or even necessary to limit the types of crimes that are covered by the legislation, it may also be desirable or necessary to take money only from authors who recall the particulars of the crime in an offensive way. A couple of examples will illustrate this point.

[33] When Roger Caron or Evelyn Lau wrote their book, it was written primarily for therapeutic reasons. Consequently, both of these writers were rewarded rather than punished by the public. However, one gets the impression from reading Micky McArthur’s book that it was written primarily to gloat about his crimes.

[34] The obvious benefit of such a distinction is that it continues to encourage those who: (1) wish to explore their motives for committing crimes; (2) wish to show the world why they did certain things; or, (3) wish to make their argument to the world that they were wrongly convicted, to continue to write or talk about their crime.

[35] The difficulty with this approach, however, and it may be a fatal difficulty, is that it is very difficult to draft legislation so as to draw a distinction between "good" and "bad" criminal recollections and equally difficult to apply legislation that distinguishes between such concepts. 29 In the end, therefore, people who have to deal with any such legislation may be very uncertain as to what they can and cannot do, with the result being increased litigation . Moreover, if criminals are given a way out of the legislation, many will take this route. All of this litigation, which no doubt will involve victims in their effort to ensure that the profits earned by the criminal will be diverted by legislation to a government agency, will increase the emotional and financial costs for victims.

[36] It is recommended, therefore, that legislation not attempt to include or exclude criminals from the application of the legislation because of the particular way that their crimes are described.

4. Methods for Effecting Legislative Purpose

[37] Given the constitutional limits as discussed, there are five possible methods for preventing criminals from exploiting their crimes to obtain a financial benefit. Those within provincial legislature authority are: (1) preserving the funds; (2) the administrative re-distribution; and (3) the assisted legal action. Those within federal legislative authority are: (1) Penitentiary Gag Order and (2) Copyright Expropriation. Each of these, together with their respective benefits and detriments, will be discussed below.

a. Provincial Legislation

(i) Preserving the Funds

[38] All legislation existing in North America can be categorized under this heading. As can be seen from the attached review of the legislation in the United States (Appendix C) there are three different methods of preserving money that is payable to the criminal in a fund for the benefit of victims.

[39] The one that exists in the majority of the states, and which has been adopted by the Province of Ontario as its Victims’ Right to Proceeds of Crime Act, 1994, 30 requires that the party to the contract which allows the criminal to profit from his or her crime pay the money to a governmental fund rather than to the criminal. The only modifications to this method are the ones that exist in California and New York. In California legislation merely imposes a trust upon proceeds accruing to the criminal while in New York the legislation merely requires that a state board be informed of contracts allowing criminals to profit from crime so that the Board, in turn, can notify the victims.

[40] The basis upon which all of these enactments operate is that once the money has been preserved (or once a victim has been notified that the criminal who caused him or her damage has assets), the victim can initiate legal proceedings against the criminal and obtain damages. There are two distinct advantages in relying upon victims to sue the criminal: it requires the victims to self-identify and it relies upon the courts to determine the extent of each victim’s damages.

[41] While this may be a satisfactory basis upon which to operate legislation of this type in the United States, where awards for non-pecuniary damage claims may approach the astronomical amount of money that can be earned through, for example, book sales, it is a model that is far less suitable for Canada. This can be illustrated by the Bernardo case. In that case Bernardo was charged and convicted of kidnapping, sexually assaulting and murdering two young girls. Recent case law indicates that for the loss of their children’s care, guidance and companionship the parents of the children may each receive in the neighbourhood of $15,000-$20,000. 31 Without any knowledge of the type of book that Mr. Bernardo may be capable of writing, it is expected, because of the notoriety of the case and because of its temporal proximity, that Mr. Bernardo would earn a great deal more money than that.

[42] Not only will notorious criminals be much more likely to financially benefit from legislative schemes that rely upon the victim’s legal action, but in undergoing any such action the victim will have to expend financial resources and go through the trauma of an assessment of damages. In situations where the assessment is of the worth of a child, this process must be a very painful one indeed. The situation is exacerbated in Ontario where contingency fees are not presently allowed, S 32 and where the Compensation for Victims of Crime Act 33 gives the Criminal Injuries Compensation Fund a right of subrogation to any action that the victim brings against the criminal to the extent of the value of the compensation awarded under the Act. 34

[43] That, however, is not the full extent of the problem. The purpose of preserving funds is to ensure that it is worth the victim’s effort and money to bring the lawsuit. However, in order to give victims sufficient time to bring their lawsuit, legislation of this type typically provides for the retention of the money earned by the criminal for a long time.often up to six years. This means that for all of that time the criminal has been deprived of income. Not only is this risky from a Charter point of view, given that this delay in income may not be justifiable, but it also has some negative policy implications. These are:

1. although a five or six year delay would be hard on any person, it is particularly onerous on someone who is trying to earn a living as a writer. Both Roger Caron and Evelyn Lau are in this category;

2. it may mean that a person may get out of prison, with no income other than that earned by writing books, and be unable to use the income from his work to assist in his rehabilitation. Julius Melnitzer, except for the fact that he appears to be able to write about things other than his crime, would be within this category; and,

3. A government agency needs to look after this money until such time as a victim with a judgment can take it off its hands. This involves additional costs (which presumably may be taken out of the proceeds) and risks.

(ii) Administrative Re-distribution

[44] One way of avoiding the problems that are endemic to the fund preserving model is to have a government agency.presumably the one that is in charge of holding and accounting for the money that would otherwise have been paid to the criminal.find the victims and distribute the money to them. Rather than having a system where the damages that have been awarded are paid out of the monies available, with the risk that the criminal will still end up profiting from his or her crime, the enabling legislation can provide that victims are entitled to a percentage of the money paid to a government agency.irrespective of the amount of that money. The only task left to the government agency, therefore, would be to apportion to each victim the total money payable to the victims as a group.

[45] In addition to ensuring that the criminal does not in fact profit from his or her crime, this system has the advantage that victims will probably not have to undergo the same sort of examination of the worth of their damages (since an apportionment need be made only when there are multiple victims and, even then, the examination need not be so probing since the determination is as to relative worth rather than absolute worth) nor will they have to undergo the embarrassment of having the value of their family members set out in money terms. Finally, it is submitted that this administrative model suits the Canadian nature more than one which relies upon lawsuits.

[46] Despite these advantages, there are a number of possible disadvantages. Since the scheme would be a legislative invention, there are at least two constitutional issues that need be considered. These are that the scheme may be inconsistent with sections 96 and 91(23) of the Constitution Act, 1867. Each of these will be considered in turn.

(a) Section 96

[47] On its face, section 96 merely requires that the federal Parliament appoint judges of the Superior, District and County Courts in each province. As interpreted, however, this section protects the jurisdiction of those courts by preventing both the federal and provincial legislatures from establishing other courts with the jurisdiction that was, in 1867, exercised by the superior, district and county courts. In order to determine whether this section has been infringed, the courts have devised the following three part test:

1.whether the jurisdiction to be given is broadly conformable to powers exercised by superior, district or county courts at or after Confederation;

2.whether the jurisdiction to be exercised is a judicial power; and,

3.if the jurisdiction to be exercised is judicial in nature, whether the jurisdiction can nevertheless be justified as a necessary functional requirement within the institutional context.  35

[48] While it may be argued that an administrative agency under legislation preventing the exploitation of crime would be doing the same thing as a court in assessing and awarding damages, there are certain differences. First, the method of assessment would be different. Rather than attempting to quantify the victim’s damages, an administrative officer would merely attempt to ascertain the victim’s relative share of the money. In fact, if there is only one victim, there would not have to be any assessment at all (unless the percentage of money that the criminal is to be allowed to keep is to be determined by the governmental agency rather than by legislation). Second, the amount of money that a victim could receive under this legislation would not be limited to the extent of their damages at law. For example, even if a victim suffered relatively minimal damage, he or she would still be entitled to his or her share of the criminal’s profits of a best selling book. Third, since courts take money away from the criminal and the administrative model would only distribute money among the victims, the method of determining the victim’s share of the monies need not be the same nor as strict as a court’s. Finally, the argument that the administrative model is not broadly conformable to the powers exercised by the provincial superiors courts may be enhanced by a legislative provision stating, as some U.S. state legislation does, that the rights contained in the legislation are in addition to and not a substitution for rights existing at common law (or under the Civil Code).

[49] These same points support the argument that the administrative officer that allocates money among victims is not exercising a judicial function. This argument would be enhanced if the legislation provided that the criminal is not a party to the proceedings and cannot appear to make representations. 36 Such a provision would be possible since under the legislation, so long as there are victims, the criminal must lose a certain percentage of his or her money in any event.

[50] If these arguments fail, it is unlikely that a court will find that the powers exercised by the administrative officer can be justified because they are necessary to the broader institutional context. The simple reason this is so is that the legislation as anticipated doesn’t fit within a much broader purpose, such as labour relations, See footnote 37 education  38 or transportation. 39 Rather, this legislation, if implemented according to this model, would merely be an alternative to the fund preserving model which, as noted, is based upon the notion that victims will sue criminals in the superior courts.

(b) Section 91(23)

[51] The second issue is the extent of federal legislative authority under section 91(23) of the Constitution Act, 1867, the class of "copyright" and the effect that class might have on any provincial legislation. Although there has not been a lot of judicial interpretation of the limits of this class, using the principles that have been developed elsewhere it is possible to make a few observations.

[52] Generally, the law of copyright can be characterized as the method by which Parliament bestows negative rights: the right to prevent people from copying material that is protected and the right to prevent people from using copyrighted material without paying for it. 40 Given this description, there are two conclusions that can be drawn. The first of these conclusions will be dealt with immediately below, while the second conclusion (dealing with federal jurisdiction over copyright) will be dealt with later in this paper.41

[53] Given Parliament’s legislative limitations under section 91(23), it would seem reasonable to conclude that legislation that leaves a copyright intact but which requires that the copyright holder give up a portion of the proceeds earned through the use of these negative rights must be characterized as being in relation to a matter of property and civil rights rather than to matters of copyright. This conclusion follows from the fact that the right to earn money from a copyright has neither been dealt with by federal legislation nor is it a negative right that, it is argued, can be dealt with by federal copyright.

[54] In other words, just as Parliament does not have jurisdiction under section 91(27) merely because a criminal is involved, Parliament should not have jurisdiction under section 91(23) merely because legislation may involve material over which copyright has been granted. Moreover, even if this were not the case
"such that a court might conclude that laws that impair the usefulness of a copyright are laws in relation to matters of copyright 42 it is also possible for the courts to conclude that such legislation also relates to matters of property and civil rights and that, until the federal Parliament has occupied the field, valid provincial legislation can still operate.

[55] Notwithstanding this last conclusion, it should be noted that there are those who are of the opinion that "it is not open to the Province to create a property right the consequence of which is to deprive the author of a portion of the ownership of the work that he or she has written."

[56] Whether this conclusion is correct or whether Parliament is in fact restricted under section 91(23) to bestowing negative rights only has yet to be determined by any court. Until that time, any final conclusions that can be made in this area must be speculative only.

(iii) Assisted Legal Action

[57] Assuming that it is not constitutionally possible to implement the administrative re-distribution model, the only option that is available is relying upon victims suing the criminal for damages. As noted above, however, there are some defects in that system. The final alternative, therefore, is one that continues to rely upon the benefits of that system while eliminating the defects. This can be done by legislatively providing assistance to victims in their lawsuits against the criminal.

[58] As the law now stands, courts will accept the existence of a conviction of a criminal charge as prima facie proof, in a civil context, that the criminal committed the act for which he or she was charged. 43 As a result, in actions by victims against criminals there is theoretically no difficulty in establishing liability. The primary problems, as noted above, are with the cost, the difficulty and the embarrassment in proving damages. If that situation were legislatively altered, most of the defects of that system would be eliminated.

[59] The proof of pecuniary damages is relatively easy, since the only proof that is needed are the receipts of out-of-pocket expenses or the direct testimony of income that has been lost. In order to prove non-pecuniary damages, a plaintiff must show how much a rape meant or how valuable a child was to a parent. In many of these cases experts are required to give testimony, and this involves a great deal of added expense to the litigation. In other circumstances, where the court is involved in valuing the life of a child, this process can be wrenching and embarrassing.

[60] This difficulty could be eliminated if victims could rely upon legislation that gives them, in certain circumstances, a fixed sum of money for a particular injury. This type of legislation already exists in Alberta, where the Fatal Accidents Act 44 gives certain close relatives the right to a statutory maximum amount of money for bereavement. Although that particular legislation suffers from the one defect that its monetary limits are set too low, that defect can easily be remedied by legislation that places the statutory limit in a regulation rather than in the legislation and that also includes a requirement that the limit be examined every few years to determine its suitability. 45

[61] Ironically, under this type of legislation the different legislative purposes merge into one. So long as the monetary amount is set high enough, a reasonable likelihood will exist that criminals will not be able to profit too much from their crimes. Moreover, because it will be easy to prove both liability and damages, victims will not only get a larger judgment but can expend less money and go through less emotional turmoil in getting that judgment. Finally, since there is no reason why legislation of this type needs to be restricted to victims of crime, legislation that fixes the damages for non-pecuniary harm can be of benefit to all victims and not just those who were harmed as a result of a criminal act.

[62] Unfortunately, the one weakness of this legislation is that it can apply to both victims of crime and victims of civil wrongs. Thus, while the legislature could conceivable raise the damages that are due to victims for non-pecuniary damages to such a level that criminals are not likely to profit, that may mean that tortfeasors will pay much larger damage claims merely to make sure that victims in the criminal context can take most of the criminal’s money. While there is nothing theoretically wrong with this, it may be considered by many legislators to be an unattractive option either because it may not be seen as being directed toward the prevention of profits by criminals or because it may have repercussions for the insurance industry.

[63] While it is no doubt possible to draft such legislation in a way that it only applies to victims of a criminal act, even this possibility is not attractive. In order to limit the benefit of such legislation to victims of crime, it would be necessary to expressly exclude victims of civil wrongs. Given that crimes and torts do not necessarily result in different injuries, a distinction of this kind may not be politically sustainable.

[64] It is recommended:

1. that since the assisted legal action model does not meet the requirement that legislation be specifically directed toward preventing criminals making profit, that model not be implemented.

2.that both the fund preserving model and the administrative model have certain advantages and either model can be used in provincial legislation (draft legislation is included in appendices E and F respectively).

b. Federal Legislation

(i) Penitentiary Gag Order

[65] Clifford Olson, who was convicted in 1982 of the murder of eleven boys, has apparently written two books about those murders. 46 These are Profile of a Serial Killer.The Clifford Olson Case and Inside the Mind of a Serial Killer.A Profile. Those books, which apparently deal with the rape and murder of a number of young boys in graphic detail, have never been published. Despite attempts by Mr. Olson to send these books to members of the media, as described in a Statement of Claim (enclosed as Appendix D), such attempts have been thwarted by the Penitentiary in which he presently resides pursuant to sections 71, 96, and 98 of the Correction and Conditional Release Act 47

[66] There are at least two advantages to such legislation. First, it can be used to only restrict the section 2(b) rights of those authors that really provoke outrage. Second, it actually prevents books from being published rather than merely taking the profits that the criminal author would earn from a published book.

[67] Unfortunately, this approach has two problems.

[68] First, it is susceptible to a Charter challenge. Although the reduction in people affected by the legislation may be seen to be a minimal impairment, from the point of view of the particular criminal author affected his or her section 2(b) rights are completely obliterated. Moreover, if Parliament wanted to minimally impair those rights it would allow the criminal to publish (all or part of his or her material) while taking a share of his or her profits.

[69] It is because of the particular and excessive impact on him that Clifford Olson has brought an action in the Federal Court challenging the authority of the warden to impose these restrictions. Although the federal Crown denies in its defence (Appendix D) that a Charter breach has occurred, the real defence seems to rely upon section 1 of the Charter. In that regard the Crown argues that the only way it can allow Mr. Olson to be transferred to reduced security, which will assist in his treatment and rehabilitation, is to reduce his notoriety within the prison population. Mr. Olson is, therefore, prevented by the Penitentiary from sending his books outside of the prison since any publication of those books would increase his notoriety.

[70] Although the Federal Court judge who heard the challenge decided that the infringement could be upheld under section 1 (Appendix D), that decision is now under appeal. If the legislation continues to be upheld on appeal, and if the suggestion above has been adopted such that any legislation designed to prevent criminal from exploiting their crimes is limited to those crimes that cause moral outrage, 48 legislation that gives wardens authority to determine if criminals are entitled to recall their criminal experiences may prove to be all the legislation that is needed.

[71] The second problem with this approach is that it may not provide a guarantee that people who have been convicted of a criminal offence will not be able to make a profit. Karla Holmolka provides the perfect illustration of this problem. As most people know, Ms. Holmolka has pleaded guilty and was sentenced to twelve years in jail for her part in the murder of two people. Because the sentence is so short, Ms. Holmolka can avoid any gag order by delaying her efforts to exploit her crime until such time as she is released from jail, safe in the knowledge that the notoriety of her crime will be such that she will still be able to make a profit from it at that time. The only thing that may stop her from doing this is the fact that, when she entered into her plea bargain with the Crown, she agreed that she would not attempt to profit from her crime. While this may or may not be effective to prevent Ms. Holmolka from seeking to exploit her crime, and it is unclear how such a promise can be enforced,  49 this type of provision is not always included in plea bargains.

[72] Since legislation allowing gag orders is already in place, preventing certain criminals from profiting from their crimes, no recommendation need be made about this option.

(ii) Copyright Expropriation

[73] Even if, as noted above, 50Parliament only has jurisdiction under section 91(23) of the Constitution Act, 1867 to confer rights of copyright that are negative in character, it is submitted that Parliament still has jurisdiction to prevent criminals from exploiting their crimes so as to earn a profit. This follows from the fact that just as it is within Parliament’s jurisdiction to give a person these negative rights, it must be within Parliament’s jurisdiction to deny particular persons the ability to acquire a copyright or to decree that it owns the copyright to certain works rather than the author of the work.

[74] This conclusion is particularly important in light of a proposed amendment to Copyright Act (Appendix B) that would give the Crown in right of Canada the copyright in works that have been "created, prepared or published by or in collaboration with the person who has been convicted of an offence under the Criminal Code that may be proceeded against by way of indictment" so long as the work "is principally based on the indictable offence or the circumstances of its commission".  51 Unfortunately, there are a number of problems with this proposed legislation.

[75] First, so long as a work comes within the terms of the legislation, copyright exploitation will be automatic. Consequently, there will be no way to prevent the legislation from applying to works that do not give rise to a sense of outrage. For example, books such as those written by Roger Caron and by Julius Melnitzer, depending upon how the relevant phrases of the legislation are interpreted, could come within the terms of the legislation.

[76] Second, the Charter will likely have some impact on the validity of the legislation. This is so despite the fact that the Charter does not protect property rights. Thus, while the expropriation itself may be allowed, the argument probably will be that if the Crown does nothing with the work once it has acquired the copyright, it is preventing the criminal from expressing him or herself. Moreover, once it is known that the Crown will refuse to exercise the rights of ownership once it has copyright, other criminals may be convinced not to write at all.which is probably a further infringement of section 2(b) rights.

[77] Third, the Charter argument will likely be reinforced by the existence of article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights 52 which recognizes the rights of everyone to benefit from the protection of the moral and material interests resulting from any...literary or artistic production of which he is the author.

[78] Finally, if the federal Crown does exercise its newly acquired copyright in a work, written by a criminal about his or her crime, it may be compelled by the Charter to attempt to make a profit on the work. In this instance the Crown would be put in the position of exploiting only slightly less offensive sight than criminals doing the same thing.

[79] It is recommended that the option giving the federal Parliament the ability to expropriate the copyright on the recollection of crime publications not be adopted.

Next Annual Meeting

2020 Annual Meeting

Place to be Announced

August 9 – 13, 2020