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S.M. 2004, c. 34
Bill 41, 2nd Session, 38th Legislature
The Profits of Criminal Notoriety Act
(Assented to June 10, 2004)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The following definitions apply in this Act.
"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence. (« conjoint de fait »)
"contract for the recollection of a crime" means a contract under which
(a) a person convicted of, or charged with, a designated crime provides his or her recollection of the designated crime, either directly or indirectly; and
(b) consideration is payable to, or at the direction of, the convicted or accused person or his or her agent. (« contrat d'utilisation du récit d'un acte criminel »)
"convicted" includes a finding that a person was not criminally responsible on account of mental disorder and a finding of guilt in a proceeding under The Youth Criminal Justice Act (Canada). (« personne déclarée coupable »)
"court" means the Court of Queen's Bench. (« tribunal »)
"designated crime" means an act or omission that
(a) is an indictable offence under the Criminal Code (Canada) for which the maximum penalty is imprisonment for five years or more and that involves
(i) the use or attempted use of violence against another person, or
(ii) conduct that endangers or is likely to endanger the life or safety of another person or that inflicts or is likely to inflict severe psychological damage on another person;
(b) is an offence or attempt to commit an offence under section 151, 152, 153, 271, 272 or 273 of the Criminal Code (Canada);
(c) is an offence under the Criminal Code (Canada) that is prescribed by regulation as a serious property offence; or
(d) is an offence under the criminal law of a jurisdiction outside Canada, if a similar act or omission would be an offence referred to in clause (a), (b) or (c) if it were committed in Canada;
whether the act or omission occurred before or after this Act came into force. (« acte criminel désigné »)
"director" means the person appointed as Director of Public Safety under The Civil Service Act. (« directeur »)
The following are deemed to be agents of a person convicted of, or charged with, a designated crime:
(a) a personal representative of the convicted or accused person, including an executor, administrator, committee, trustee or receiver of the person;
(b) a person to whom the convicted or accused person has assigned his or her rights;
(c) a corporation to which the convicted or accused person has a substantial connection.
In the absence of evidence to the contrary, the following are presumed to be agents of the convicted or accused person:
(a) a spouse or common-law partner, or a former spouse or common-law partner, of the convicted or accused person;
(b) a person who is related by birth or adoption to the convicted or accused person.
The purpose of this Act is to prevent criminals from financially exploiting the notoriety of their crimes.
CONTRACTS FOR THE RECOLLECTION OF A CRIME
This Part applies only to a contract for the recollection of a crime
(a) that was committed in Manitoba; or
(b) that was committed outside Manitoba, if consideration under the contract is paid or payable to
(i) a resident of Manitoba, or
(ii) a person serving a sentence of imprisonment in a penitentiary or other custodial facility located in Manitoba.
On request from the director, a party to a contract for the recollection of a crime must, without delay,
(a) give the director, in writing, the names and addresses of all the parties to the contract; and
(b) give the director
(i) a copy of the contract, if it is in writing, or
(ii) a written summary of all terms of the contract, if it is not in writing.
Except when permitted under this Act, no person shall pay consideration under a contract for the recollection of a crime.
A person who is required under a contract to pay consideration but who is prohibited by subsection (1) from paying it shall, without delay, pay that consideration to the director when it becomes payable under the contract.
No acceptance of consideration
Except when permitted under this Act, no person shall accept consideration under a contract for the recollection of a crime.
A person to whom consideration is payable but who is prohibited by subsection (1) from accepting it shall, without delay, direct the payor to pay it to the director.
APPLICATION FOR PAYMENT OF CONSIDERATION
A party to a contract for the recollection of a crime may apply to the court for an order authorizing consideration paid or payable under the contract to be paid in accordance with the contract.
The applicant must name the director as the respondent.
An application may not be commenced more than two years after
(a) the date on which consideration under the contract was first paid to the director under subsection 6(2); or
(b) the person was convicted of the designated crime;
whichever is later.
The court may make an order directing that some or all of the consideration paid or payable under the contract for the recollection of a crime be paid in accordance with the contract only if the applicant satisfies the court that — after taking into account the importance to society of not allowing criminals to financially exploit the notoriety of their crimes — the value to society of the recollection justifies some or all of the consideration being paid in accordance with the contract.
In determining the value to society of the recollection, the court is to take into account
(a) the purpose of the recollection;
(b) the details of the crime, including the violent or sexual nature of the crime;
(c) whether, and to what degree, victims of the crime may suffer further harm from the recollection; and
(d) if the recollection has been, or is about to be, made known to the public as a result of the contract,
(i) the extent to which the publication, broadcast, public appearance or other means of dissemination deals with the recollection, and
(ii) whether the recollection, or the dissemination of it, exploits or sensationalizes the crime.
Future consideration to director
If the court determines that all, or any part of, future consideration payable under the contract should not be paid in accordance with the contract, the court is to make an order directing that consideration to be paid to the director when it becomes payable under the contract.
This Part does not apply to any contract entered into by
(a) a law enforcement agency; or
(b) a federal, provincial or municipal government or any department or agency of those governments.
A person who contravenes section 5 is guilty of an offence and is liable on summary conviction to a fine of not more than $10,000.
A person who contravenes section 6 is guilty of an offence and is liable on summary conviction to a fine of not more than the greater of $50,000. or the amount of consideration that the person paid in contravention of subsection 6(1) or failed to pay to the director as required under subsection 6(2).
Requirement to pay to director continues
The payment of a fine under subsection (2) does not relieve a person of the duty to pay consideration to the director under subsection 6(2).
Offence re acceptance or direction
A person who contravenes section 7 is guilty of an offence and is liable on summary conviction to a fine of not more than the greater of $50,000. or the amount of consideration accepted in contravention of subsection 7(1) or in respect of which the person failed to make a direction under subsection 7(2).
A prosecution for an offence under this Part may not be commenced more than one year after the day on which evidence sufficient to justify a prosecution came to the knowledge of the director.
If the director is satisfied that a person convicted of, or charged with, a designated crime, or his or her agent, has sold an item
(a) used, owned or possessed;
(b) autographed; or
(c) made, manufactured or produced;
by the convicted or accused person for a higher price than would have been paid for the item if the person had not been convicted of, or charged with, the designated crime, the director may apply to the court for an order requiring the increase in price to be paid to the director.
Application must identify memorabilia
The application must identify the item with sufficient detail to make it readily identifiable.
The director must name the convicted or accused person, or his or her agent, as respondent to the application.
The director may not commence an application under this Part more than one year after the day on which evidence respecting the sale of an item came to his or her knowledge.
The director may not make an application with respect to an item produced by the convicted or accused person containing the recollection of a designated crime.
If the court determines that the item has been sold for a higher price than would have been paid for it if the person had not been convicted of, or charged with, the designated crime, the court must assess the amount of that increase and order the respondent to pay that amount to the director to be dealt with as consideration in accordance with Part 4.
All consideration the director receives under this Act is to be deposited into the Consolidated Fund to be held in trust until it is paid out in accordance with this Act.
Payment by Minister of Finance
If the director is required to pay an amount under section 16 or pursuant to an order under section 9, or if the director wishes to distribute an amount under subsection 17(2), the amount is to be paid or distributed by the Minister of Finance, on the requisition of the director, out of the amounts held in trust under this section.
Return of consideration on acquittal or stay
(a) the person charged with a designated crime has been acquitted and
(i) the time for an appeal has expired without an appeal being commenced, or
(ii) if the acquittal has been appealed, the acquittal is confirmed on appeal; or
(b) the charges against a person accused of a designated crime have been stayed;
the director must return the consideration to the person he or she received it from along with written notice that this Act no longer applies to the designated crime to which the acquittal or stay relates.
When consideration may be distributed
Consideration may be distributed by the director under subsection (2) if
(a) the person has been convicted of the crime; and
(b) in the case of consideration received under Part 2,
(i) an application has been made under section 8 and the consideration has not been ordered to be paid in accordance with the contract, or
(ii) the time for making an application under section 8 has expired.
The director may, in accordance with the regulations, distribute consideration to
(a) compensate victims of the designated crime in respect of which the consideration was received and of whom the director has notice; and
(b) the Victims' Assistance Fund established under The Victims' Bill of Rights.
When consideration becomes available for distribution, the director's reasonable costs incurred with respect to that consideration may be deducted from the amount otherwise available for distribution. Any amount deducted ceases to be held in trust and forms part of the Consolidated Fund.
The Lieutenant Governor in Council may make regulations
(a) prescribing offences under the Criminal Code (Canada) for the purpose of clause (c) of the definition "designated crime" in section 1;
(b) defining any word or phrase used but not defined in this Act, including "victim";
(c) respecting costs of the director that may be deducted under section 18;
(d) respecting notice to be provided by the director to victims of a designated crime when there is consideration to be distributed;
(e) governing the distribution of consideration by the director, including the circumstances in which distribution is to be made, the amount to be distributed, and the procedure for establishing the amount to be distributed when there is more than one party eligible to receive consideration held by the director;
(f) respecting any other matter necessary or advisable to carry out the purposes of this Act.
Consequential amendment, C.C.S.M. c. V55
Clause 56(a) of The Victims' Bill of Rights is amended by adding "The Profits of Criminal Notoriety Act," after "The Workers Compensation Act,".
This Act may be referred to as chapter P141 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on a day to be fixed by proclamation.