Presentation to the Legislative Standing Committee on Bill 41 - The Profits of Criminal Notoriety Act, May 2004

May 11, 2004

I am happy to appear once again on behalf of the Manitoba Association for Rights and Liberties. MARL is a non-profit group, founded in 1978, dedicated to advocacy and education in aspects of human rights and civil liberties affecting Manitobans. This submission is based in part on contributions made by volunteers with MARL's Charter Rights and Legislative Review Committee.

MARL has some significant concerns with Bill 41. Rather than proceed on a clause by clause review of the Bill, this submission deals with the Bill as a whole, which MARL respectfully submits should be withdrawn in its entirety.

An obvious concern with this Bill is that it is entirely unnecessary. The Bill certainly does nothing significant for compensating victims of crime, nor does it do anything for deterring or preventing crime. We sincerely doubt that anyone commits criminal acts in the hopes of securing a book deal. The overriding achievement of the Bill is a deprivation of Manitobans' constitutionally guaranteed freedom of expression.

Before moving to the freedom of expression concerns, we point out that this Bill may be unconstitutional as it is outside the scope of the province's jurisdiction. The effect of the law is to impose additional sanctions on those convicted under the Criminal Code of Canada. This is not imposing a legal disability in an area of provincial competence, such as suspending a driver's licence; rather, by taking away people's rights, it is an express disapproval of criminal conduct. Arguably this falls within the exclusive jurisdiction of Parliament pursuant to s.91(27) of the Constitution Act, 1867.

MARL submits the Bill is likely also unconstitutional on the basis of freedom of expression infringements. To many right-thinking people, the thought of a notorious criminal making money by writing a salacious tell-all tale of his horrific crimes is repugnant. The best way for the public to express its disinterest in such a scenario is for the public to refuse to buy the offending book. Creating what is, in effect, a fine for certain speech the state deems unacceptable is also repugnant to fundamental freedoms in a democratic society.

This Bill affects not only the Paul Bernardos and Clifford Olsons of the world, but the David Milgaards and the Thomas Sophonows. Consider the kind of speech this Bill could attack:

• Someone wrongfully convicted of an offence writing a book explaining his or her innocence (i.e. before vindication)

• A journalist writing an exposé on prison conditions
• A journalist or author writing a book about a crime, like Mike McIntyre's recent book on the Strongquill case
• Someone writing about political corruption may need to pay someone covered by this Act for full information
• Someone writing about an unjust law and campaigning for its reform
• Someone writing an autobiographical account of their life of crime, written with a view to deterring others from embarking on a similar path
• Depending on the crimes that this Bill will cover, some of which will only be listed by way of Regulation, the Bill could apply to Gandhi, Bertrand Russell or Dostoevsky if they were alive and well and writing or serving time in Manitoba. If Martha Stewart was in Manitoba, it could apply to an autobiography written about her brushes with the law if she were convicted of securities violations-this could be seen as a "serious property offence".

It is no answer to say that being able to establish a "public benefit" in front of a judge allows people to get paid for their speech and therefore there's been no stifling of free speech. This is a specious argument: no other paid speech needs vetting by a Justice of the Court of Queen's Bench to determine its worth to society. In a free society the rights of citizens to obtain information, including the right to pay for it, should not depend on their ability to convince a judge that they are seeking to benefit the public. A more insidious result of this Bill is the potential chilling effect it will have. Journalists who write about crime and criminals often do so at great risk and take care to protect their sources. The prospect of a court application under this Act will simply cause some sources to dry up and some books to not be written at all. Prior censorship and the need to justify the worth of speech based on the "value to society" have no place in a free and democratic society.

The Bill discriminates solely on the content of speech and is an affront to the fundamental human and civil rights of all Manitobans. With respect, there appears a shocking indifference to the need to protect free speech where it matters most: in situations where it is deemed offensive or unpopular by the majority. Not to mention the indifference to taxpayers whose money will be inevitably be spent in defending it for the Charter challenges that will surely follow if the Bill is ever enforced. Certainly the limited resources of the courts, Provincial Crowns (including the Constitutional Law Branch) and legislative drafters can be better spent.

Again, MARL thanks the Committee for its time and willingness to entertain public submissions on proposed legislation like this.

Respectfully submitted,

The Manitoba Association for
Rights and Liberties

per:

Ken G. Mandzuik, President