Today in the legislature we debated Bill 24 – 2016: Profits of Criminal Notoriety Act at second reading. As I noted earlier, this Bill mirrors my private members Bill introduced on February 25 entitled Bill M204 — 2016: Profits of Criminal Notoriety Act. This represents the third of my private members bills that has been adopted by government this session. Below are the text and video of my speech supporting this bill.
Near the end of February, British Columbia faced an issue similar to what other provinces have faced in the past. Robert Pickton, one of Canada’s most prolific serial killers, published a book entitled Pickton: In His Own Words.
This book was available on Amazon for a short while before it was taken down. As one expected, the situation outraged many people across the province and brought to light a gap in our current legal system. Prior to the introduction of this legislation before us, we had nothing in our province that prevented convicted criminals from financially profiting through the recounting of their crimes. That’s why my office and I delved deeper into this issue and identified a number of provinces that had already introduced legislation to address this issue.
On February 25, 2016, I introduced Bill M204 — Profits of Criminal Notoriety Act, 2016, which was based on similar legislation in Nova Scotia. I am strongly in support of the intentions of this legislation and look forward to its passage in the Legislature.
However, please let me take a few minutes to recount the other side of what we uncovered as we looked into this issue. It’s my hope that by doing so, I can contribute positively to making a strong piece of legislation that is applied appropriately to specific situations, such as the case with Robert Pickton.
Now, Ontario was the first to enact legislation that prevented criminals from profiting from the notoriety of their crimes through recounting them, typically through publishing books that retold their crimes. Ontario passed this legislation in 2002. Manitoba followed in 2004, Alberta in 2005, Nova Scotia in 2006 and Saskatchewan in 2009.
I think it’s important to note that, as far as I can tell, Canada’s Parliament has refused to bring in similar legislation for fears of impairment of the free speech of Canadians. This concern arose in 1996 when the Senate rejected Bill C-205, which would see amendments made to the Copyright Act and the Criminal Code in order to create a federal law. While the bill passed through the House of Commons, the Senate received legal opinions that cautioned that the legislation would cause an infringement to their freedom of expression guarantee in the Charter of Rights and Freedoms.
It is here that I’d like to highlight the work of Joanne Colledge, executive officer to the Chief Justice of Saskatchewan and the provincial judicial council, and John Whyte, an emeritus professor in the Department of Politics and International Studies at the University of Regina. Their paper entitled Capturing Proceeds from Criminal Notoriety: A Case Study was published in 2012 in issue 2 of volume 17 of the journal Review of Constitutional Studies, pages 41 to 72. You can get the link on my website after today.
This paper provides an excellent overview of one of the most important debates we must undertake in advancing this legislation. It further shines a light on a potential pitfall for governments who seek to take this law too far or to prosecute a specific individual instead of an issue of public policy. The work by Colledge and Whyte explores the series of events that led to Saskatchewan’s bill being introduced in 2009 and their concerns that it represented a possible Charter violation. This was due to the way in which the bill seemed to target an individual specifically rather than a public policy in general.
The individual in question, Mr. Colin Thatcher, was in the press at the time in discussions about his attempt to publish a book recounting some elements surrounding his arrest and conviction. Please let me quote directly from the work of Colledge and Whyte:
“While certainly not unique to Saskatchewan, the enactment of the Notoriety Act caused concern precisely because it was done so quickly, without due consideration for potential constitutional considerations; because it was targeted specifically to ensure that Thatcher’s book would be captured by the acts provision, including expressly making the Notoriety Act’s application retro-active; and because of all this occurred before anyone in the government or elsewhere had seen the book’s content. That the Notoriety Act may have been targeted to capture Thatcher’s book seems especially significant since, written into the Notoriety Act are two sections that were not applied by the Government. These two sections allow exceptions to the Act’s application when the content falls within certain statutory definitions.
What ultimately came to issue here was the language used by the Saskatchewan legislature. They created: “definitional layers and an indeterminate scope that served to frustrate a clear understanding of which writings will actually fall within the Notoriety Act’s expropriating provisions.” That was a direct quote from the same paper.
Now I know that the legislature will have ample opportunity to ensure that the language chosen in the government’s bill, the Profits of Criminal Notoriety Act, does not create a similar issue. However, I felt it was important to take an opportunity at second reading to ensure that the principle in question was expressed.
This bill and the similar legislation I introduced followed a specific case where an individual whose actions horrified British Columbians attempted to publish an account of these crimes for profit. While I’m convinced that we must address a glaring legislative gap, and I further stand behind the principle that this legislation advances, we must ensure that we are setting up a legislative framework that works to create a fundamental tenet: those who commit criminal acts should not profit from the direct retelling of their crimes. We must ensure that this is restricted to instances where the purpose of the individual was exactly this.
The concerns expressed in the Colledge and Whyte paper are that the individual in Saskatchewan, Colin Thatcher, who I mentioned earlier, was not attempting to publish a recounting of his crimes, but rather “to examine the police investigation and prosecution, and to analyze critically both the evidence and the theory on which his conviction was based.”
The central tenet expressed in their critique seems well founded. We must not allow this legislation to become a tool that represses legitimate forms of free speech. Whether or not a government likes something that is published should not be the determining factor, rather whether the text meets the specific requirements of the legislation before us should be.
This is why the words matter. Words matter. They must be able to diverge unpopular opinions from those where an individual seeks to recount their crimes for profit.
I look forward to exploring this in more detail when the minister brings this bill to committee stage and hope to get his perspective on where, in this balancing act, this particular piece of legislation lands. I commend the government for bringing the legislation forward. It’s timely, needed, and I thank you for your attention.
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