Financial Exploitation of Crime 1996

FOOTNOTES


Footnote: 1 This point is discussed further, at infra part III(1).

Footnote: 2 In addition to the ability to sue at common law for torts or delicts, provinces also provide legislation that allows victims to obtain money from a public fund. In this regard see: Criminal Injuries Compensation Act, R.S.B.C. 1979, c. 83; Criminal Injuries Compensation Act, R.S.A. 1980, c. C-33; Criminal Injuries Compensation Act, R.S.S. 1978, c. C-47; The Criminal Injuries Compensation Act, Re-enacted S.M. 1987, c. 305; Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24; Crime Victims Compensation Act, R.S.Q. 1977, c. I-6; Compensation for Victims of Crime Act, R.S.N.B. 1973, c. C-14; Compensation for Victims of Crime Act, R.S.N.S. 1989, c. 83; Criminal Injuries Compensation Act, R.S.Nfld. 1970, c. 68.


Footnote: 3 The various states in the United States enacted legislation as a result of the outrage that occurred when David Berkowitz., the "Son of Sam" received $75,000 for his assistance in writing a book about his life: S. S. Okuda, 'Criminal Antiprofit Laws: Some Thoughts in Favor of Their Constitutionality’ (1988), 76 Cal. L.Rev. 1353 and J. T. Loss, 'Criminals Selling their Stories: The First Amendment Requires Legislative Reexamination’ [1987] 72 Corn. L.R. 1331. In Canada, the same outrage occurred after Clifford Olson received $100,000 from the police in exchange for

information about the death of eleven children: see Rosenfeldt v. Olson (1984) 16 D.L.R. (4th) 103 (B.C.S.C.), overturned on appeal at (1986), 1 B.C.L.R. (2d) 108 (C.A.). For a discussion of the trial decision, see J. D. McCamus, 'Recovery of the Indirect Profits of Wrongful Killing: the New Constructive Trust and the Olson Case’ (1985), 20 E.T.R. 165. The same outrage has occurred in the wake of the Bernardo and Homolka trials, as noted in the following footnote, even though they have not financially benefited from their crimes.


Footnote: 4 On October 21, 1993 Debbie Mahaffy was present in the Ontario Legislature when she was reported to have said that "To profit from crime, the murder/violation of another human being, is quite a repulsive reality in Canada." That same day a portion of a letter that Doug and Donna French had sent to the Members of the House was read. In that letter the parents of murdered teenager Kristen French were reported to have written the following: "The fact that people want to profit from someone else’s tragedy is disgusting. But the fact that the criminals themselves can profit from crime is an outrage. It exploits victims and their families and in fact promotes crime". Both of these comments were mentioned by Mr. Cam Jackson, the sponsor of the private members bill that led to the creation of the Victims’ Right to Proceeds of Crime Act, 1994, S.O. 1994, c. 39: Debates of the Legislative Assembly of Ontario (3rd Sess., 35th Parliament) No. 73 (October 21, 1993), p. 3653. The same sentiments were voiced by Mr. James Bradley, speaking in support of the Bill on behalf of the Liberal Party, where he said: "Society is repulsed by the fact that someone who has committed a crime can make a profit from that crime.": Ibid., p. 3656.


Footnote: 5 Committee on the Financial Exploitation of Crime, 'Committee Report on the Financial Exploitation of Crime’ (Uniform Law Conference of Canada, Calgary: 1984), p. 7.


Footnote: 6 Surprisingly, it appears that the provinces were to get their 30% despite the fact that many of the criminals who seek to profit from their crimes would have been incarcerated in federal penitentiaries.


Footnote: 7 Since the Attorneys General had last been approached, two changes had taken place. First, the rules of the Conference had been changed, so that it was no longer necessary to approach the Attorneys General before projects were undertaken. Second, Ontario had proceeded with its plans to enact legislation preventing the exploitation of crimes by criminals. Because of this latter fact and the fact that the provinces had shown more concern through legislative initiatives for the better treatment of victims, there was confidence that the provinces would be interested if the Conference proceeded with this project.


Footnote: 8 Joint Session of Uniform Law Section and Criminal Law Section, 'Financial Exploitation of Crime’ (Uniform Law Conference of Canada, Quebec: 1995).


Footnote: 9 Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference), [1949] S.C.R. 1, 50, affirmed by the Judicial Committee of the Privy Council at [1951] A.C. 179.


Footnote: 10 Ibid., 49-50: "A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed." Also see R. v. Swain, [1991] 1 S.C.R. 933, 998-9.


Footnote: 11 Toronto Railway. Co. v. Toronto City, [1920] A.C. 446


Footnote: 12 Scowby v. Glendinning, [1986] 2 S.C.R. 226, 240 and R. v. Zelensky, [1978] 2 S.C.R. 940.


Footnote: 13 If the act of recalling a crime by a criminal were indeed a crime, then the provincial legislatures could not create any legislation prohibiting it. However, so long as this matter is one that comes within provincial jurisdiction, such provincial legislation may operate even though it may be characterized as providing a punishment to the commission of a criminal offence other than the one prescribed in the Criminal Code, R.S.C. 1985, c. C-46 and thus contrary to s. 6(1)(b) of that Act: R. v. Langlais (1965), 49 C.R. 159 (Que. S.C.).


Footnote: 14 Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662, 691 and Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59 illustrate that merely because legislation is prompted for moral reasons, it will not necessarily be characterized as criminal in nature.


Footnote: 15 Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 973.


Footnote: 16 R. v. Oakes, [1986] 1 S.C.R. 103.


Footnote: 17 It should also be noted that there are a number of good policy reasons why all of a criminal’s money should not be taken. For example, if criminals can earn some money through writing, it may mean that their energy is channelled into that activity rather than through crime. Moreover, it should assist the reintegration of criminals into society if, upon their release, they have at least some of the proceeds of their exploitation to rely upon. In addition, in arriving at their determinations about whether the criminal’s rights have been minimally impaired, courts may be affected by article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights (adopted and opened for signature, ratification and accession by General Assembly resolution 2200 A (XXI), 16 December 1966 and ratified by Canada 19 August 1976) which recognizes the rights of everyone, presumably including criminals, to the material interest resulting from any "literary or artistic production of which he is author".


Footnote: 18 Joint Session of Uniform Law Section and Criminal Law Section, supra note , pp. 9-10.


Footnote: 19 In arriving at this conclusion, the paper, ibid, relied upon the reformulation of the third criterion by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835, 889 and in the conclusion of the Supreme Court of the United States in Simon & Schuster, Inc. v. New York Crime Victims Board, 112 S.Ct. 501 (1991).


Footnote: 20 This is already part of the common law. See, for example, Hollington v. F. Hewthorn & Co. Ltd., [1943] 2 All. E.R. 35; Hunter v. Chief Constable of West Midlands, [1981] 3 All. E.R. 727 (H.L.); Demeter v. British Pacific Life Insurance Co. and two other actions (1983), 43 O.R. (2d) 33; and, Royal Bank of Canada v. McArthur (1985), 51 O.R. (2d) 86. It is also part of many provincial Evidence Acts. For example, see Evidence Act, R.S.O. 1990, c. E.23, ss. 22 and 38 and Evidence Act, R.S.B.C. 1979, c. 116, s. 29.


Footnote: 21 Some provinces already have provisions like this in case of fatal accidents. See, for example, the Fatal Accidents Act, R.S.A. 1980, c. F-5, s. 8 and the recommendation of the Alberta Law Reform Institute that the level of compensation set out in that Act be raised and that it be reviewed every three years by the Lieutenant Governor in Council and subject to increase by Order in Council: Non-Pecuniary Damages in Wrongful Death Actions:_A Review of Section 8 of the Fatal Accidents Act (Alberta Law Reform Institute, Edmonton: 1992).


Footnote: 22 Criminal Code, R.S.C. 1985, c. C-46, s. 672.34: "Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffereing from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder." (emphasis added)


Footnote: 23 This latter possibility is not merely fanciful. A few years ago, years after the crime had been committed, three of the people who were involved in freeing George Blake, a convicted spy, wrote books about the subject. See: Pat Pottle and M. Randle, The Blake Escape: How We Freed George Blake and Why (Harrap Books Ltd: 1989) and Sean Bourke, The Springing of George Blake, (Macmillan: New York, 1987). In fact, at least one of these books was written to earn money to be able to pay for a defence in the event that they were charged.


Footnote: 24 Supra note .


Footnote: 25 Supra note .


Footnote: 26 Supra note .


Footnote: 27 Supra note .


Footnote: 28 Supra part III(4).


Footnote: 29 It should be noted that An Act to amend the Criminal Code and Copyright Act (profit from authorship respecting a Crime), Bill C-307, introduced into the House of Commons by Tom Wappel, MP for Scarborough West on February 22, 1995, (Appendix B) uses the phrase "and the work is principally based on the indictable offence or the circumstances of its commission".


Footnote: 30 Supra note .


Footnote: 31 For example, see Fong Estate v. Gin Brothers Enterprises Ltd. (1990 B.C.C.A.)) (cited from Goldsmith, Damages for Personal Injury and Death, vol. 2, p. T65-17); Gill Estate v. Greyhound Lines of Canada Ltd. (1987), 21 B.C.L.R. (2d) 324 (B.C.S.C.) Larney Estate v. Friesen (1986), 41 Man .R. (2d) 169 (Man. C.A.) Reidy v. McLeod (1986), 54 O.R. (2d) 661 (Ont. C.A.); Gervais v. Richard (1984) 48 O.R. 191 (Ont. H.C.); Kinnon v. Traynor (1982), 46 A.R. 75 (Alta. Q.B.).


Footnote: 32 This situation may change in the near future as the Attorney General has announced that he is in favour of them and because work is now being undertaken within the Government to determine what the impact of contingency fees are likely to be.


Footnote: 33 R.S.O. 1990, c. C-24, s. 26(2).


Footnote: 34 It has been reported in the media that the French and Mahaffy families received close to their full compensation under the Act.$25,000.


Footnote: 35 Reference Re Residential Tenancies, [1981] 1 S.C.R. 714.


Footnote: 36 There are a number of decisions to the effect that the essential feature of a judicial function is to resolve the lis between the parties: Labour Relations Board (Saskatchewan) v. John East Iron Works Ltd., [1949] A.C 134 , 149-50. If there is in fact no lis, then it is arguable that the officer is not exercising a judicial function.


Footnote: 37 For example, see Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112.


Footnote: 38 For example, see Jones v. Edmonton Catholic S. Dist. Trustees Bd., [1977] 2 S.C.R. 872.


Footnote: 39 For example, see Attorney General for Quebec v. Farrah, [1978] 2 S.C.R. 628.


Footnote: 40 H. Laddie, P. Prescott and M. Vitoria, The Modern Law of Copyright and Designs (Butterworths, London: 1995), p. 1: "A thing cannot be described as property unless one has a legal right to stop others from using it, either absolutely or (at any rate) on condition that a suitable payment is made. Intellectual property is thus a purely negative right, and this concept is quite important. Thus, if someone owns the copyright in a film he can stop others from showing it in public but it does not in the least follow that he has the positive right to show it himself."


Footnote: 41 Infra part IV(4)(b)(ii).


Footnote: 42 To some extent, this position can be supported by the decision Bishop v. Télé-Métropole Inc. (1985), 4 C.P.R. (3d) 349, 367-8 (Fed. T.D.). However, that decision may be explained on much narrower grounds, that being that the legislation in that case went to the core of what is copyright.the ability to prevent the non-copyright holder from making copies.


Footnote: 43 Supra note . Also see Evidence Act, R.S.O. 1990, c. E.23, s. 22.1, as amended by An Act respecting Victims of Crime, S.O. 1995, c. 6.


Footnote: 44 R.S.A. 1980, c. F-5, s. 8.


Footnote: 45 These were, in part, the recommendations of the Alberta Law Reform Institute, Non-Pecuniary Damages in Wrongful Death Action:_A Review of Section 8 of the Fatal Accidents Act, supra note .


Footnote: 46 He has also copyrighted a video entitled Motivational Sexual Homicide Patterns of Serial Child Killer Clifford Robert Olson.


Footnote: 47 S.C. 1992, c. 20.


Footnote: 48 Supra part (IV)(2)


Footnote: 49 So long as Ms. Holmolka is still governed by her sentence (that is, she is either imprisoned or on parol), the fact of a non-compliance with her plea bargain can be used by the Parole Board as an indication of Ms. Holmolka’s suitability for early release. Once she is free of the criminal justice system, it is hard to see what the Crown can do to ensure that she complies with her agreement. If it sued for breach of contract, it is unlikely that the Crown can prove any damages.and the victims themselves were not party to the plea bargain so they could not sue. The only possible option that the Crown would have, to re-charge Ms. Homolka for those crimes for which she was not tried, but even this option is not necessarily possible since part of the consideration that Ms. Homolka gave for this benefit was a guilty plea.and that she cannot get back. Even if this option is possible, however, it would not exist in most cases.


Footnote: 50 Supra part IV(4)(ii)(b).


Footnote: 51 An Act to amend the Criminal Code and Copyright Act (profit from authorship respecting a Crime), supra note . As I understand, this Bill has only received first reading and has not yet received support from the government. However, Mr. Wappel’s executive assistant advised me that this bill has support of the Bloc Québecois and the Reform Party and of many people within the Liberal Party. Consequently, they have great hopes that this Bill will become law.


Footnote: 52 Supra note .


Footnote: 53 See: Limitation Act, R.S.B.C. 1979, c. 236, s. 3(1); Limitation of Actions Act, R.S.A. 1980, c. L-15, s. 51; Limitation of Actions Act, R.S.S. 1978, c. L-15, s. 3(1)(d); Limitation of Actions Act, Re-enacted S.M. 1987, c. L150, s. 2(1)(e); Limitation of Actions Act, R.S.N.B. 1973, c. L-8, s. 4; Statute of Limitations Act, R.S.P.E.I. 1988, c. S-7, s. 2(1)(d). In Quebec, the prescription time is three years (Code Civil du Québec, art. 2925) and in Ontario the limitation period is four years (Limitations Act, R.S.O. 1990, c. L.15, s. 45(1)(j)). In Nova Scotia, the limitation period is one year: The Limitation of Actions Act, R.S.N.S. 1989, c. 258, s. 2(1)(b).


Footnote: 54 Supra part IV(1).


Footnote: 55 This Act came into force May 1, 1995.


Footnote: 56 This draft does not attempt to deal with issues relating to protection of privacy legislation which may differ from jurisdiction to jurisdiction.


Footnote: 57 See Criminal Code, section 672.34 (S.C. 1991, c. 43, s. 4).


Footnote: 58 Much of this definition was taken from section 752 of the Criminal Code.


Footnote: 59 Throughout this draft the term "Government Agency" appears in parenthesis. It is intended that this phrase be replaced, in each jurisdiction's statute, with the name of the official or agency that will function as the "Government Agency" in that jurisdiction.


Footnote: 60 Very loosely based on section 5 of the Judicial Review Procedure Act.


Footnote: 61 This draft does not attempt to deal with issues relating to protection of privacy legislation which may differ from jurisdiction to jurisdiction.


Footnote: 62 See Criminal Code, section 672.34 (S.C. 1991, c. 43, s. 4).


Footnote: 63 Much of this definition was taken from section 752 of the Criminal Code.


Footnote: 64 Throughout this draft the term "Government Agency" appears in parenthesis. It is intended that this phrase be replaced, in each jurisdiction's statute, with the name of the official or agency that will function as the "Government Agency" in that jurisdiction.

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