Benjamin Perrin is a law professor at the University of British Columbia, Peter A. Allard School of Law and a senior fellow at the Macdonald-Laurier Institute for Public Policy.
Outrage was swift this week when news spread that convicted serial killer Robert Pickton had penned a book being sold on Amazon about his heinous crimes. While news reports said the profits will go to his former cellmate, it's troubling that there's no legislation in British Columbia or nationally stopping him from pocketing the proceeds.
This is not the first time a serial killer's profits from publishing his tales has generated condemnation. In the late 1970s, New York state passed a law spurred by speculation that serial killer David Berkowitz (the "Son of Sam" killer) was being offered a significant amount of money to tell his story. Under the law, profits from such criminal notoriety were to go to the victims or their family members. This so-called Son of Sam law was replicated in most states in the United States and has spread around the world.
In Canada, only half of the provinces (Alberta, Saskatchewan, Manitoba, Ontario and Nova Scotia) have laws specifically designed to prevent offenders from profiting from the notoriety of their crimes. Federal Public Safety Minister Ralph Goodale should bring forward legislation to prevent offenders from profiting from their crimes, and the remaining provinces – such as British Columbia – that are lacking such laws need to adopt policies as well.
Why should serial killers and other serious criminals be barred from profiting from book sales, movie deals and memorabilia related to their crimes? Most victims have been denied meaningful compensation or restitution for the harm that they have suffered because of these usually broke offenders. Seizing whatever profits are related to these crimes from their retelling and directing such proceeds to victims is just and symbolically important.
There's also something profoundly wrong with allowing an offender to financially benefit from something that society has denounced as criminal. As the Supreme Court of Canada has recognized, "[t]he rule of public policy which precludes a person from benefiting from his or her own crime is an integral part of our system of law."
These are not censorship laws – they don't bar these books from being published. Amazon and the publisher of Mr. Pickton's book decided after public outcry this week to no longer sell or print it, but no law prevented them from doing so – nor should it. Indeed, one of the main concerns of victims when an offender tries to "tell their story" is not merely the lies and innuendo inevitably included in such self-serving accounts, but the possibility that the offender could actually profit.
Unfortunately, it usually takes cases such as this latest episode with Mr. Pickton's book to prompt action. That's just what has happened with B.C. Premier Christy Clark now promising that the province will quickly adopt a law to prevent criminals like Mr. Pickton from profiting from their crimes, borrowing liberally from what's on the statute books of other provinces. But there are pitfalls the Premier must avoid in proposed legislative cutting-and-pasting.
First, many Son of Sam laws are only symbolic. They have so many loopholes and gaps that victims will never see a dime if they are commercially successful. Indirect publishing deals, out of jurisdiction publishers, and having royalties or honoraria go through a third party are just a few examples of issues to be addressed.
Second, these laws are inevitably challenged on constitutional grounds based on freedom of expression. Some Son of Sam laws have been struck down in the United States, while others that have addressed judicial concerns have been upheld. We've already seen one such challenge brought and dismissed here in Canada. The right balance must be struck.
Under the Profits of Criminal Notoriety Act in Saskatchewan, persons charged or convicted of designated crimes are prevented from financially profiting from recounting their crimes or selling memorabilia (e.g. autographs, objects or items related to the crime). Recounting includes recalling circumstances related to a designated crime, thoughts/feelings associated with it and re-enactments. A purpose of this legislation is to support and compensate victims of crime and their family members.
Former Saskatchewan Cabinet Minister Colin Thatcher, who was convicted of murdering his ex-wife, JoAnn Wilson, challenged Saskatchewan's Son of Sam law. In Saskatchewan (Minister of Justice) v. Thatcher, the Saskatchewan Court of Queen's Bench dismissed his challenge to the Profits of Criminal Notoriety Act. Justice T.C. Zarzeczny held that the legislation was valid provincial legislation and did not infringe freedom of expression under the Charter and, alternatively, if it did then it would be saved by section 1 of the Charter. An order was issued for Thatcher to provide the publisher's advance for the book that he authored about his crime to the Minister of Justice, not to accept any further consideration for the book's sales, and to require the publisher to remit to the Minister of Justice any further royalties.
Today, much more than when the Son of Sam killer was finally caught, violent criminals quickly become celebrities in our 24/7 media culture, providing them with ample opportunity for financial gain. They should never be able to profit from their horrific crimes. Our laws should guarantee it.