The Case Against a Son of Sam
By Katherine Govier
This article originally appeared in Globe and Mail, Friday,
October 17, 1997. It is reprinted here with permission from PEN
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
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
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
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.
Sources, 489 College
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