The Case Against a Son of Sam Law

By Katherine Govier

This article originally appeared in Globe and Mail, Friday, October 17, 1997. It is reprinted here with permission from PEN Canada.

To date, the most compelling argument against Liberal MP Tom Wappel's so-called Son of Sam legislation, which has been passed by the Commons and is sitting in the Senate, derives from Clause 2(b) of the Canadian Charter of Rights and Freedoms: Writing or speaking about a crime is not, in itself, a crime. Therefore, advances or royalties are not "proceeds of crime." Moreover, it follows that a law which restricts payment or confiscates copyright for published accounts of crime violates the right to freedom of expression by discriminating on the basis of content.

This line of reasoning appears to elude Mr. Wappel and the members of the Uniform Law Commission, an Interprovincial committee of bureaucrats who continue to push forward legislation that ostensibly seeks to prevent serial killers like Paul Bernardo and Clifford Olson from earning royalties from books about their crimes. One such law already exists in Ontario, having been hastily enacted by the NDP in the wake of the Bernardo murders.
Mr. Wappel's private member's bill, C-220, would make it financially impossible from criminals to profit from anything they write about their crimes. It would accomplish this goal by lumping advances, royalties and copyright under the "proceeds of crime" definition in the Criminal Code. The bill further states that any sentence for an indictable offence automatically includes loss of copyright to Her Majesty for any work based on the crime, thereby contravening the Berne Convention on Copyright to which Canada is signatory.

What's more, the legislation covers not only the criminals themselves but family members, dependents and collaborators, i.e. co-authors. So that, for instance, two-time Governor-General's Award winner Rudy Wiebe, about to go to press with a work he co-authored with a native woman serving time for murder, would lose his right to control its copyright.

The bill is almost identical to one introduced by Mr. Wappel earlier this year, which made it as far as the Senate before dying on the order paper when the Liberals called the federal election. No one should be surprised that victims' rights groups urge politicians to adopt such restrictions on free speech. Their members are justifiably appalled at the prospect of someone like Paul Bernardo growing rich on the sales of a lurid tell-all autobiography. However, this doesn't happen in Canada.; the market does not allow it, and the population does not seem to have the appetite.

But as is often the case with laws that limit speech, the proposed law is ridiculously broad. It would end up punishing the wrong authors and stifling all expression about crime and the justice system. In its brief to Parliament, PEN Canada points out that such a law - because it includes works produced "within or outside Canada" - covers books such as The Autobiography of Malcolm X, Thoreau's Civil Disobedience and Dostoyevsky's Crime and Punishment.

Closer to home, the law would apply to such Canadian books as Roger Caron's Go-Boy, Patti Starr's Tempting Fate and Kyle Brown's Scapegoat. It would cover people wrongly accused of a crime, as well as those who had completed their prison terms. PEN director Stephen Reid - who wrote his first novel, Jackrabbit Parole, in prison - will also be directly affected, despite the fact that he considers the act of writing to be "an expression of my willingness to participate in orderly society."

And, in sweeping family members under the proposed ban, the law would prohibit Mr. Reid's wife, the distinguished poet Susan Musgrave, from publishing any work about her relationship with Mr. Reid, his imprisonment or his crime. Ms. Musgrave, currently chair of the Writers' Union of Canada, represents this country internationally through her award-winning poetry as well as her work on behalf of other writers.

There's another consideration here. Published works written by convicted criminals are few and far between. Mr. Reid observes that since 1982 there have been just eight books published in English by prisoners. "None of these stories 'celebrate' the criminal," he wrote in a letter accompanying PEN's brief. "Rather, they illuminate the issues of racism, misogyny, child abuse, substance addictions, poor choices, bad experiences and harsh confinement."
This law, in other words, could end up silencing convicted prisoners who want to document legitimate problems within the Canadian corrections system. Is that what Mr. Wappel wants?

Ultimately, the U.S. experience in this area should serve as a guide for Canadian legislators. In states like New York, lawmakers passed such laws to prevent notorious serial killers from becoming bestselling authors. But the U.S. Supreme Court struck down New York's Son of Sam law, as well as those enacted by other state legislatures, for the simple reason that they contravened out rights to free speech.

Unnecessary, discriminatory and almost certainly unconstitutional, Bill C-220 would deservedly meet the same fate as its U.S. counterparts. In this light, federal politicians should be asking themselves: Why not just dispense with it now?

Author Katherine Govier is the president of PEN Canada.

UPDATE: PEN Canada has been asked to appear before The Senate Standing Committee on Legal and Constitutional Affairs to present their concerns. This will likely occur in early 1998. If the legislation is amended by the Committee it will be sent back to the House of Commons for approval. As the ramifications of the legislation becomes more apparent, widespread opposition to Bill C-220 is developing.

Published in Sources, Number 41, Winter 1998.

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