Justice Committee on May 1st, 2012

[Charles Gauthier]

I'm sorry?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I was going to ask you what would have happened had they won. You don't have to answer that.

[Charles Gauthier]

Okay.

[The Chair, Conservative, Dave MacKenzie]

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

I also want to welcome our witnesses.

I have a question for Mr. Graham. The present subsection 351(2) of the Criminal Code sets out the offence now of disguise with intent. It effectively states that any person:

...who, with intent to commit an indictable offence, has his face masked or coloured or is otherwise disguised is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

And as the annotation in Martin's Annual Criminal Code states, the crown must prove this intention.

You seemed to, in your remarks, express concern—and I would put it the other way, justification—for this present legislation on the grounds that the crown is required to prove intent. What is wrong with that? Why shouldn't the crown be required to prove intent? Shouldn't that be the normal process with respect to criminal prosecution?

[Chief Jamie Graham]

You're asking me to comment in areas where I lack that depth of knowledge. I would ask you to pose those kinds of questions to a crown prosecutor. But I know from practical experience, working a hold-up detail for many years, that trying to get charges laid against people wearing a disguise is difficult, because the level of intent that's required by a crown prosecutor to proceed is, in my view, unreasonably high.

[Irwin Cotler, Liberal, Mount Royal, QC]

To follow up on your remarks, basically what you're saying is that the particular prospective legislation before us would allow—in your words, if I recall them correctly—for what you called a pre-emptive arrest.

[Chief Jamie Graham]

That's right.

[Irwin Cotler, Liberal, Mount Royal, QC]

Now, would that pre-emptive arrest not still require the same burden with respect to intention?

[Chief Jamie Graham]

No. If this excellent legislation is passed, it won't.

[Irwin Cotler, Liberal, Mount Royal, QC]

So we would remove that burden with regard to the intention to commit an offence.

[Chief Jamie Graham]

As I said, I'm not sure what the legal scholars will finally decide. All I can suggest is that if we come across an individual about to enter into a riotous situation with a backpack full of masks and implements to create a riot, then it would give us the authority to detain, arrest, and prosecute.

[Irwin Cotler, Liberal, Mount Royal, QC]

This brings up a question that was put by my colleague, Craig Scott, and that is the whole question of a transitional situation. Supposing somebody comes to participate in a lawful assembly masked, and in the evolution of that lawful assembly it then moves into an unlawful assembly.

[Chief Jamie Graham]

Yes, I listened to those questions. Those are good questions and are things that we've thought about continually. I have enough faith in the prosecutorial system and the police use of discretion and good, God-given common sense, that wouldn't allow us to include in those prosecutions people who are there for religious purposes.

Notwithstanding that, if you're there for religious purposes, or because of weather, or because of your medical condition, once you pick up a brick or you engage in unlawful behaviour, you waive your right to have your face covered.

[Irwin Cotler, Liberal, Mount Royal, QC]

If you picked up a brick, under the present legislation wouldn't you be liable right now? That's under the present legislation, without the need for new legislation.

[Chief Jamie Graham]

Once again it depends on the circumstances. As was the case I outlined earlier, with the observations of officers who saw people getting prepared to engage in this kind of behaviour, with masks, who are weaving their way in and out of lawful assemblies, and we know what they're about to do through other means, this would give us the grounds to certainly detain those kinds of offenders.

[Irwin Cotler, Liberal, Mount Royal, QC]

What you're seeing as the main value here, if I can put it back, is the notion of the capacity for pre-emptive arrest, which in your view doesn't exist under the present law.

[Chief Jamie Graham]

No, no. I think the strongest rationale, as put forward by Mr. Richards, was certainly the deterrent value and the example this would send to people who are thinking about engaging in a riot. There would be a deterrent effect so that they would not engage.

I think there are a number of other benefits to this that will simply make for a more peaceful demonstration.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Cotler.

Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, Mr. Chair.

Chief, it's good to see you here.

Are you aware of other jurisdictions that have legislation dealing with those wearing masks during an unlawful assembly or a riot? Do you know how that has assisted law enforcement in those other jurisdictions?

[Chief Jamie Graham]

As I mentioned in my remarks, I'm aware of New York State and other American jurisdictions. France and the United Kingdom have laws that deal with people who wear masks during assemblies and gatherings.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Could you speak to difficulties police have had in identifying those engaged in criminal behaviour who have been disguised?

[Chief Jamie Graham]

It's almost a common sense application of the law. You require identity. The courts in Canada require a pretty strict interpretation of identity to successfully prosecute. I know the efforts and the time the Vancouver police have put into identifying the rioters so far is staggering. The cost is staggering.

This kind of legislation would allow us ahead of time to send a very strong deterrent message to those individuals who are contemplating wearing a mask that their conduct will be observed and preventive arrests could be made.

In the midst of an unlawful assembly, it's extremely difficult to commit resources to actually enter a riotous crowd to take people into custody. You simply don't have enough officers, and that goes against the basic tactics of crowd dispersal we've all been trained in. The officers we send to attend these kinds of riots don't ask for much from Parliament. They only ask for the tools and the legislation to help them do their jobs as well as possible.

There's no group more committed to human rights and to lawful protest than the police. I have countless letters from organized groups in Vancouver thanking us, after protests, for the way the police engaged with the crowd to make it lawful. If they were here, many would condemn bad behaviour also, because it takes away from the legitimate message that comes with lawful assemblies.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

I agree with that, and of course lawful assemblies and protests are parts of our national fabric, and this wouldn't be the country it is and we wouldn't have the freedoms we enjoy without them.

You mentioned that B.C. has a unique charge approval system. Would I be correct in surmising that part of the issue over the slowness of charges, etc. really does come down to the steps needed in terms of identification to move forward with prosecution?