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This document was prepared by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians with plain language background and analysis of proposed government legislation. Legislative summaries are not government documents. They have no official legal status and do not constitute legal advice or opinion. Please note, the Legislative Summary describes the bill as of the date shown at the beginning of the document. For the latest published version of the bill, please consult the parliamentary internet site at www.parl.gc.ca.

LS-300E

TABLE OF CONTENTS

BACKGROUND

DESCRIPTION AND ANALYSIS

COMMENTARY

BILL C-220, AN ACT TO AMEND THE CRIMINAL CODE AND
THE COPYRIGHT ACT (PROFIT FROM AUTHORSHIP RESPECTING A CRIME)

BACKGROUND

Bill C-220 is a Private Member’s Bill, introduced in the House of Commons on 30 September 1997. It seeks to prevent criminals from profiting from the commercialisation of their crimes, be it through books, movies or other media.

Bill C-220 was first introduced in the House of Commons as Bill C-307 on 22 February 1995, and reintroduced as Bill C-205 on 29 February 1996. Bill C-220 is virtually identical to its predecessor, Bill C-205, which was passed in amended form by the House of Commons on 10 April 1997, and which was given second reading in the Senate on 22 April 1997. Bill C-205 died on the Order Paper when the general election was called in late April 1997. Reintroduced as Bill C-220 in the current Parliament, it was adopted by unanimous consent in the House of Commons on 1 October 1997 and referred to the Senate.  In a report tabled on 10 June 1998, the Standing Senate Committee on Legal and Constitutional Affairs recommended that the bill not be proceeded with further in the Senate.  The report was concurred in by the Senate on the same day.

DESCRIPTION AND ANALYSIS

Bill C-220 contains three clauses which would amend the Criminal Code and the Copyright Act.

   Clause 1: Proceeds of Crime

Clause 1 of Bill C-220 would amend the definition of "proceeds of crime" in section 462.3 of the Criminal Code to include proceeds obtained directly or indirectly as a result of the creation, within or outside of Canada, of a work that recounted or depicted the commission of an actual offence for which the accused was convicted or that was based substantially on the commission of such an offence or the circumstances surrounding it, if:

• the offence was one that could be proceeded against by indictment; and

• the person convicted of the offence, or a member of his or her family or a dependent, with whom the offender collaborated, received or became entitled to receive the property, benefit or advantage as a result of the authorship of or any collaboration or cooperation in the creation or publication of the work.
  

   Clause 2: Deemed Copyright Order at Sentencing

Clause 2 would add new section 729.1 to the Criminal Code, which would provide that, where an accused had been convicted of an offence that could be proceeded against by indictment, there would be deemed to be included in the sentence an order that the convicted person and any work related to the offence were subject to new section 12.1 of the Copyright Act.

   Clause 3: Copyright in the Crown

Clause 3 would add new section 12.1 to Copyright Act. New subsection 12.1(1) would vest in the Crown any copyright that would otherwise vest in a person convicted of a Criminal Code offence that could be proceeded against by indictment, where the work in question was created, prepared or published by or in collaboration with the convicted person and where it was substantially based on the indictable offence or the circumstances of its commission.

The copyright acquired by the Crown in such cases would apply to any work published at any time following the time the convicted person was charged with the indictable offence or with any other offence on the basis of the same circumstances (new subsection 12.1(2)). The Crown’s copyright would subsist for whatever term would have applied had it belonged to the convicted person (new subsection 12.1(1)), and it would not revert back to the convicted person after completion of the sentence (new subsection 12.1(3)).

COMMENTARY

By precluding convicted offenders from profiting from their crimes, Bill C-220 would reinforce a fundamental value of Canadian society that criminals should not profit from their crimes. It would also reinforce and give effect to the adage that "crime does not pay." The bill would deem the proceeds received for accounts of criminal acts to be "proceeds of crime" for the purposes of Part XII.2 of the Criminal Code, thus subjecting such proceeds to a forfeiture order under section 462.37. It would also disentitle offenders from having copyright in their works, thus preventing them from receiving royalties from book sales, movie deals and televised interviews. Bill C-220 would not prevent offenders from telling their story. It would simply ensure that they derived no benefit from it.

If passed into law, Bill C-220 would be the first initiative of its kind to have Canada-wide application. In 1994, Ontario passed the Victim’s Right to Proceeds of Crime Act, 1994 (Statutes of Ontario 1994, chap. 39). Modelled on the American "Son of Sam" laws, the Ontario legislation requires that monies payable under contract to criminals for recounting their crimes be paid to and held by the Public Trustee for a specified period of time in order to compensate victims who obtain a court judgement against the offender.

The Uniform Law Conference of Canada also developed model legislation, the Criminals’ Exploitation of Violent Crime Act, which it adopted at a meeting in August 1997. This model legislation would require that any consideration owed to a convicted person resulting from the recollection of a violent crime be given to a government-appointed agency, which would distribute the proceeds to the victims of the crime in proportion to the harm suffered by them, as determined by the government-appointed agency (and not by the courts, as is the case with the Ontario legislation).

One of the perceived shortcomings in the Ontario legislation and the Uniform Law Conference’s model law is that they would apply only in the province in which they had been enacted. Bill C-220, in contrast, would apply throughout the country and could thus not be circumvented by offenders who might otherwise seek a jurisdiction which had not implemented confiscatory legislation.

Reaction to Bill C-220 has been mixed. The Canadian Police Association supports the bill in principle. Victims’ groups, such as the Victims Resource Centre and Victims of Violence, have also expressed support for the bill, notably because it would prevent victims from suffering further by seeing offenders profiting from their crime. On the other hand, the bill has been criticized by the Canadian Conference of the Arts and writers’ groups, such as the Book and Periodical council, PEN Canada and the Writers’ Union of Canada. These groups contend that the bill is too broad in scope and that it might violate freedom of expression. Noting that the bill would apply to Canadian works, like Patti Starr’s Tempting Fate, Kyle Brown’s Scapegoat, Stephen Reid’s Jackrabbit and Roger Caron’s Go Boy (1978 winner of the Governor-General’s award for non-fiction), writers’ groups fear that the proposed legislation would have a chilling effect on the literary community and scare publishers away from possibly contentious material. Writers’ groups are also concerned that the bill would apply to persons wrongly convicted of the offence and to members of the offenders’ family, and that it would continue to apply once the offender had served his or her sentence.

A possible violation of freedom of expression, guaranteed under section 2 of the Canadian Charter of Rights and Freedoms, has been an often-cited concern in relation to Bill C-220. As pointed out earlier, however, the bill would not prevent offenders from telling their story; it would merely prevent them from profiting from it. As such, the courts might find that there was no violation of freedom of expression. If, in turn, such a violation were found to exist, the bill might be upheld as a reasonable limit pursuant to section 1 of the Charter. This is the position taken by the bill’s sponsor. In evidence given to the House of Commons Standing Committee on Justice and Legal Affairs, Mr. Wappel stated that "the Supreme Court of Canada would invoke section 1 of the charter to validate the law, as it re-affirms the centuries-old truism of our law that no criminal may profit from their crime.(1)

There may also be some question as to whether the bill is a valid exercise of Parliament’s exclusive legislative authority over the criminal law under section 91(27) of the Constitution Act, 1867. Since the bill seeks to confiscate proceeds derived, not from the offence for which the accused was convicted, but from a subsequent "lawful" activity, that is, the creation of a work substantially based on the offence, it might be argued that the bill does not, in pith and substance, deal with a criminal law matter and might thus be struck down as ultra vires Parliament.

On a technical level, there might be some question about whether the forfeiture provisions in Part XII.2 of the Criminal Code would apply to the proceeds targeted by the bill. As a rule, the court is empowered under section 462.37 to make a forfeiture order only in relation to proceeds deriving from the commission of an "enterprise crime offence." Since only some of the offences subject to the bill’s application are designated as an enterprise crime offence under section 462.3, a forfeiture order could thus not be made in relation to those offences that were subject to the bill (i.e., any offence that could be proceeded against by indictment), but which were not designated as enterprise crime offences. Also, the proceeds subject to forfeiture under section 462.37 are proceeds deriving from the enterprise crime offence for which the accused was being sentenced. Pursuant to the bill, however, the proceeds would not derive from an enterprise crime offence, but would instead derive from a "work" created in relation to the offence. As there would be an intervening act, namely, the creation of a work, it is thus unclear whether a forfeiture order could be made in such cases, notwithstanding the bill’s revised definition of "proceeds of crime."

Other possible concerns that might be raised in relation to the bill include:

• the broad scope of the bill, which would apply not only to serious offences, but to any offence that "might be proceeded against by indictment," thus capturing a range of possibly minor offences that did not involve violence, for example, computer hacking (technically "mischief in relation to data," contrary to section 430 of the Criminal Code) and shoplifting (technically "theft of property under $5000," contrary to section 334 of the Criminal Code).

• the bill would apply only to accused persons "convicted" of the offence, thus excluding from its reach offenders who were found "not criminally responsible" by reason of a mental disorder or who were "found guilty" as young offenders, or who were granted an absolute or conditional discharge under section 730 of the Criminal Code.

• by applying only to works "substantially based" on the offence, the bill might be circumvented by offenders who created works, only an "insubstantial" part of which discussed the offence.

• the bill might run counter to some of the international agreements to which Canada is a party, notably, the Berne Convention for the Protection of Literary and Artistic Works, which requires that member States grant to "authors" certain specified rights, and the International Covenant on Economic, Social and Cultural Rights, which recognizes the right for everyone to "benefit from any ...literary or artistic production of which he is the author."

• the proceeds confiscated under the bill would not be directed at compensating the victims of crime, but would instead go into the general consolidated revenue fund.

That criminals might profit from their crimes is undoubtedly offensive to many Canadians, in particular the victims of crime. Bill C-220 would put a stop to this by ensuring that offenders could not derive any benefit from their criminal acts. The question remains whether the mechanisms proposed in the bill would be effective in achieving this goal.

(1)   House of Commons Standing Committee on Justice and Legal Affairs, Evidence 70:6 (6 November 1996).