TORONTO – How is Paul Bernardo, one of Canada’s most notorious serial killers and rapists, able to pen a graphic, violent novel from prison? According to one criminal lawyer, it’s within his rights as a prisoner and he is likely the one profiting behind bars.
These are the questions arising after the serial killer released the political spy thriller titled A MAD World Order on popular e-commerce website Amazon on June 25.
“What is key here is that Paul Bernardo did not write about his crimes, he wrote about what he wanted,” said Toronto criminal lawyer Ari Goldkind.
“Whether it’s a story about al Qaeda, global conflict or any other kind of story, he is not prohibited from exercising his creativity, or what he would define as his creativity, from prison.”
Ontario passed the Prohibiting Profiting from Recounting Crimes Act in 2002, which prohibits prisoners from receiving money for writing about the details of his crimes.
“The important take away there is… Paul Bernardo could still write a book about his crimes, even in detail, but he would not be allowed to receive any moneys from it,” he said.
“It precludes profit from the recounting of your crimes; it does not prevent the recounting of your crimes or more specifically as is here, any recounting of a story by a convicted criminal.”
A federal bill was never enacted but Goldkind said the Ontario legislation was specifically earmarked for this situation and was a follow up from legislation involving David Berkowitz in the 1976 Son of Sam killings in the United States.
In terms of payment, Goldkind said that Bernardo alone would stand to profit from the book.
“There is no reason, as it distasteful as it may seem, why any profit made from this book or the publishing of this book would be payable to anyone other than Paul Bernardo,” Goldkind said.
“The idea of prison is not to strip somebody of their creativity, and as I said the legislation here is to strip them of profiting from their crimes.”
It is not uncommon for inmates to express themselves creatively from prison, whether it be through novels, art, music or otherwise, “you cannot stop somebody from being creative just because they are in jail.”
“Inmates do not, or should not, have unfettered access to the Internet,” Goldkind said.
“It is highly likely that somebody on the outside is or was assisting Mr. Bernardo. Whether it be receiving letters or mail from him, or some kind of manuscript, or being on the phone with him and dictating as he spoke.”
Goldkind added that material written by Bernardo would be screened by the Correctional Service of Canada before it goes out, but there would be nothing in their purview to censor the content, particularly since he is not recounting his crimes specifically.
There are some graphic, gory details in the book describing the suicide of two characters in the book, but Goldkind said this is still considered artistic expression.
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“When people exercise creativity, particularly people behind bars, it may not be sunshine and roses that they’re writing about,” he said.
“Corrections Canada’s mandate is to ensure that Mr. Bernardo remains in custody, period. It is not their mandate to screen his thoughts; it is not their mandate to cut off his access to the outside world – so long as he is following the rules that are in place.”
“It is not for them to censor what he writes or what he thinks or who he speaks to, so long as he is not breaking any law that anybody can point to.”
Goldkind said the profits of the book would “absolutely be payable to him,” but that could change under certain circumstances.
“Now could the Attorney General given a public outcry, bring some kind of forfeiture hearing for these profits, or some kind of action under the proceeds from crime legislation? Yes,” he said.
“But I would think it would be a tremendous stretch … the people buying it may be the ones that we should be most concerned because they are the ones knowingly padding the pockets of one of, if not Canada’s most horrific criminal.”
Whether Bernardo is in custody or not, the bottom line is that in Canada freedom of expression is still enshrined and cannot be taken away, Goldkind said.
“He’s not committing a crime, he is writing a story and he will likely end up selling more copies of the story because now people will hear about it and there’s obviously an element of society that enjoys the salaciousness of these kinds of people,” he said.
“A more interesting question down the road, given that this is published on Amazon, is will Amazon feel any pressure or obligation to not let materials written by a man like this remain on their website.”
If Amazon does decide to pull the e-book from its site Goldkind said they could be treading down a “very slippery slope” where others decide who or what is exposed to the general public.
“Do I want Amazon deciding who I can read or not?” he said.
“At the end of the day these are the difficult issues that a free society has to grapple with.”