Evidence of meeting #35 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was police.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • James Stribopoulos  Associate Professor, Osgoode Hall Law School School, York University, As an Individual
  • Patrick Webb  Former Member, Royal Canadian Mounted Police, As an Individual

11:05 a.m.

Conservative

The Chair Dave MacKenzie

I call the meeting to order. The clock says 11, but it's never been properly set and apparently it's three minutes fast.

This is meeting 35 of the Standing Committee on Justice and Human Rights, pursuant to the order of reference of Wednesday, February 15, 2012, Bill C-309, an act to amend the Criminal Code.

Today we have two witnesses, one appearing by video conference. The other witness, Mr. Patrick Webb, is here with us. I think the witnesses have heard from the clerk that we accord them five to seven minutes for an opening address.

Mr. Stribopoulos, if you would care to begin, please go ahead. I'll let you know when you're down to one minute left in your time.

11:05 a.m.

James Stribopoulos Associate Professor, Osgoode Hall Law School School, York University, As an Individual

That's great. Thank you very much.

Good morning, and thank you for this opportunity to appear before the committee, especially for the accommodation to appear by video conference. I very much appreciate it.

I'm very pleased to be with you this morning to speak to you about concerns I have regarding the proposed legislation, Bill C-309. Let me begin by saying that I understand the motivation behind this legislation very well, and it is commendable. The concern that drives the proposal is undoubtedly the result of what we witnessed here in Toronto, for example, not so recently, but we've witnessed it on other occasions as well, where violence erupts in a public gathering, public order is called into question, and individuals who are bent on engaging in criminal acts of vandalism or violence directed at people or property employ a disguise or a covering to conceal their identity from view so they can act with impunity.

I obviously share the view that I'm sure is shared by most members of the committee that this is something that's completely unacceptable in a free and democratic society and something we should collectively deplore. Thankfully, however, I think we already do.

This is why I have concerns about proposed Bill C-309. In essence, it is this: this is a solution in search of a problem. There is no deficiency in the law that this proposed legislation needs to fix. I'm specifically making reference to an existing provision in the Criminal Code, which is routinely charged, and that is a provision found in subsection 351.(2) of the Criminal Code that makes it an offence, and I quote now directly from the relevant and existing section of the code:

Every one 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.

So there is already an offence that can be charged if someone is participating in a riot and covers their face with the intention of facilitating that participation. There is already an existing criminal offence that can be charged to get at that conduct. It's already unlawful. There is already this tool in place for the police to employ when confronted by those participating in a riot or violent tumult, as has been described in the case law, to charge those who cover their faces for the purposes of concealing their identities so they can act with anonymity in engaging in wanton damage of property and acts of violence.

Frankly, therefore, I don't see the need for the proposed amendment to the code. I also fear, and you might say in response, “Oh, what's the harm of adding a provision that's situated more closely to the riot provision and would become a subsection under section 65 so that you'd look at the one and look at the other.“ There are a number of problems with doing that. First, it creates confusion for the police officer in the field as to which offence to charge. There now appear to be two that would be relevant to the conduct they're dealing with. Police officers, not being lawyers, are rightly cautious, and they will tend, when there's more than one offence available, to charge them both. They'll err on the side of caution. They'll overcharge, in the words of commentators who are concerned about that very phenomenon and the impact it has on the criminal process.

Overcharging is something that does result in needless delay as participants come to terms with what ultimately should be the right charge and what offence the accused should plead guilty to or be found guilty of. At the end of a trial, for example, a jury or a judge would return a verdict of guilty for both offences, but then there would be a need for argument regarding the overlap, and the one offence would be judicially stayed. There's established case law; you can't essentially be convicted of the same offence twice. That's double jeopardy, and this would essentially be the same offence.

A common example is when the police sometimes charge theft and also charge possession of property obtained by crime for the very same theft. Obviously, the moment you steal something you possess property obtained by crime. Those two charges can't be sustained to completion. They overlap, and the Supreme Court has indicated as a result that one of the offences has to be stayed.

Why add complication to the code in this way? I would suggest you shouldn't, that we have a law in place to deal with this very kind of conduct, which I agree should be criminal, and thankfully it is.

I do have concerns as well in terms of the wording. I'm getting to my second reason for being concerned about the proposal, the wording of proposed subsection 65(2), versus what we already have in subsection 351(2).

Subsection 351(2) uses express mens rea language. I'm sure you're familiar with what that term means. It's the mental requirement for criminal offences, and it requires expressly that the person donned the mask with the intention of committing an indictable offence. That mental requirement is an important check on the scope and the breadth of the provision. It makes sure, for example, that only in situations where the person's purpose is truly to conceal their identity to facilitate the crime will their conduct be criminalized.

I worry that subsection 65(2) doesn't contain similar mens rea language, and that the language as proposed, “while wearing a mask or other disguise to conceal their identity”, doesn't tie the unlawful purpose back to that action. You can imagine all sorts of circumstances where people are participating in public protests, demonstrations, where they might wear some kind of face-covering or a costume. A very common example of course are sports fans who wear paper bags over their heads in shame. Living in Toronto, I am rather sympathetic to that phenomenon. That's a pretty benign example, but obviously right across the board when you move into the public realm for the purpose of political dissent people sometimes cover their mouths, they tape their mouths, they do all sorts of things as a form of expression that is constitutionally protected by the charter. Section 2 of the charter protects our fundamental freedoms, including the fundamental right to freedom of expression, to peaceful assembly. I worry that an overly broad provision could have a chilling effect and dissuade people who were engaged in legitimate public protests and who have no desire to engage in acts of violence from employing all the tools in the rhetorical arsenal by, for example, donning costumes and the like for the purposes of making their expressive point.

I do worry about the language being a little bit too fluid, a little bit too ambiguous in the proposed provision. If you go back to subsection 351(2), which is already in the code, as I mentioned, there is none of that concern. It's only in cases where someone dons a disguise with the intention of committing an indictable offence that the conduct is criminalized. There is no such safeguard here. I note that it does make reference to “without lawful excuse”, but it doesn't define what a lawful excuse is. It would be open to interpretation on the ground. Again, police officers aren't lawyers. The line between a legitimate protest and conduct that violates this prohibition might be left unclear to law enforcement on the ground. That kind of uncertainty could lead to unjustified arrest. It could have an unfortunate chilling effect on legitimate protest.

For all of these reasons, I think that this proposed amendment, although well-intended, is unnecessary and ill-advised.

That's all I have to say by way of introductory comments. I'd be most happy to answer any questions you have.

11:10 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Mr. Webb, if you have an opening address, please begin.

11:10 a.m.

Patrick Webb Former Member, Royal Canadian Mounted Police, As an Individual

Yes, thank you.

Good morning. I'm very pleased to be able to participate in this discussion about the changes. I will keep my remarks short and provide you with a view of this bill through the eyes of an experienced police officer.

I have just over 31 years in the RCMP. Most recently, I served as a media relations officer for K Division—that's the province of Alberta. I retired as a sergeant about two months ago. But I just want to stress to you today that I speak as an individual with policing experience and not as a representative of the RCMP.

During my service, in addition to general policing, I've been involved in several major events: the 1984 visit of the Pope to Alberta, the Calgary Olympics in 1988, two royal visits, several VIP visits, the G-20 finance ministers meeting in Ottawa in 2001, and two G-8s—the 2002 in Kananaskis and the 2010 in Ontario. I want to outline those experiences, because they have provided me with a pretty close look at the evolution of public protests with policing.

My greatest experience in major events came during the Kananaskis G-8. I was in charge of the RCMP public affairs communications team. Our focus was to provide the public with as much information as possible about all security aspects of the event, bearing in mind the need to ensure the safety of the venues and of the internationally protected persons who were attending.

As you will recall, the release of the Hughes report on the 1997 APEC summit and the 9/11 tragedy in New York both occurred during the planning for that G-8. Those two events caused our planning team to take great consideration of the public's right to protest versus the need for tight and intense security.

It became very apparent that our security planning had to include the greatest possible ability for public protest to occur, but also we had to be ready to react if and when criminal acts occurred. I'm pleased to remind this committee that the G-8 was considered very successful, as there was significant public protest but a minimum level of criminal acts and arrests. I think that came because of a high level of communication between legitimate protesters and the security personnel.

Research has found that at a major event there are essentially four groups of protesters. The first are citizens who would never consider committing, or even abiding by, a criminal act but are simply there to make their views known. The second is the largest group of citizens. They also want to express their views but simply would not interfere if a criminal incident were to take place in front of them. The third group essentially is also there to protest, but more seriously, and would likely encourage or perhaps even participate in some criminal activity.

I believe this legislation is focused on those who are members of the fourth group—those who have really little or no interest in making a point of view known but simply come to an event just so they can commit criminal acts, with little chance of retribution. These people come equipped with weapons, disguises, changes of clothing, masks, communication devices, but most importantly, an intent to get away with acts that on a normal day would result in detection, arrest, and a charge.

Recently it's become very apparent that the fourth group has become aware that they could be identified through closed-circuit TV and images captured by people on digital cameras or cellphones. This awareness has been noted through surveillance of those people. They arrive on the scene dressed in normal street clothing, change into other clothing—usually black—and then put on a mask to commit assaults and property damage. They then change back into street clothing, remove the mask, and blend into the crowd.

If these people know enough to recognize how important it is to put a mask on for success as a criminal, then I believe this legislation is just as important, as it will recognize their use of a disguise and hopefully impede their ability to conceal their identity.

I believe the right of free speech is a critical component of being a citizen of Canada. But I likewise believe that this right has been hijacked on occasion by a very small number of people who distract the public's attention from important points of view because of their criminal actions.

From a law enforcement point of view, the ability to make an arrest of a masked individual during a declared riot or unlawful assembly is very important, since that action, itself, is illegal. Enforcement, then, would not have to wait until they commit a further criminal act and only then try to identify the suspect.

The vast majority of protesters, in my experience, do not want to create or participate in a riot, but their wishes are lost when violence occurs.

The majority of people attending a protest do not wear masks, as they have no need or desire to do so. They are there to get their voices heard. It is generally only those with an intent to do a criminal act who come equipped with some form of disguise.

For a peace officer to use this proposed law, there must be specific circumstances occurring. Number one, obviously there has to be a declared riot or unlawful assembly. Number two, there has to be an individual wearing a mask or a disguise. And number three, there has to be no apparent lawful excuse for that person to be wearing that mask.

If a peace officer makes the decision to make an arrest, then their actions are certainly open to review by the justice system, and, if deemed unreasonable, there would be a dismissal of charges. Law enforcement personnel are very aware that the courts review their actions. I am confident that any unreasonable use of this proposed law would result in not guilty findings.

In conclusion, I believe these changes to the Criminal Code would be providing a tool to peace officers trying to quell riot situations and to identify and arrest those who are doing criminal acts. In addition, most importantly, it would also strengthen the ability of the majority of protesters to have their voices heard through the arrest of those who distract and interfere with peaceful protest.

Thank you for your attention. I'll do my best to answer your questions.

11:15 a.m.

Conservative

The Chair Dave MacKenzie

Thank you, Mr. Webb.

We'll begin our five-minute round with Madame Boivin.

11:15 a.m.

NDP

Françoise Boivin Gatineau, QC

Thank you, Mr. Chair. I'd like to thank the witnesses for being here this morning to help us study Bill C-309.

My first question is for Mr. Webb.

You said that people who usually wear a mask do not have good intentions. I'm not sure I agree with that because, increasingly, we are seeing people with all sorts of identifiers during demonstrations. For several years now, with what's been going on pretty much around the world, we've been seeing more and more demonstrations of all kinds. People come disguised in all kinds of ways.

I'm wondering because if it was as simple as that, if masked individuals were usually criminals—based on what you said—you would already have section 31 of the Criminal Code available to you. It allows officers of the peace or a police officers to arrest anyone they have reasonable grounds to believe is about to commit a criminal offence.

So you would already have the tools necessary since you would be able to see them right away in a crowd. I think the problem is more complicated than that. More and more, people are showing up with all kinds of disguises. It becomes difficult to know who has good intentions and who doesn't. That is what we are looking at. Could you please provide some clarification about what you mean when you say that people with criminal intentions are disguised.

11:20 a.m.

Former Member, Royal Canadian Mounted Police, As an Individual

Patrick Webb

Undoubtedly I agree, to some point, with what you're saying. There are so many people who come to a protest in various apparel simply to make a comment by what they're wearing.

11:20 a.m.

NDP

Françoise Boivin Gatineau, QC

Exactly.

11:20 a.m.

Former Member, Royal Canadian Mounted Police, As an Individual

Patrick Webb

There is a point where police who are in attendance at those simply want to let the protest occur, to let it continue, as long as it's peaceful—the operative word being “peaceful”. If there are hundreds or perhaps thousands of people who are dressed in some manner that would express their views but who remain peaceful, then police officers are more than satisfied to let it just simply occur and everybody goes home at the end of the day.

The intent of those individuals is the most difficult part to determine. The intent of somebody who shows up with weapons in a bag, and a mask and gas mask, is not, in my view, to protest or make a statement: it is simply to do damage.

That's the difficult part to determine, who is doing which.

11:20 a.m.

NDP

Françoise Boivin Gatineau, QC

I agree, and I think that's the name of the game we're faced with today.

I'm sure you've read Bill C-309.

11:20 a.m.

Former Member, Royal Canadian Mounted Police, As an Individual

11:20 a.m.

NDP

Françoise Boivin Gatineau, QC

As I read the bill as it's written, I don't see much difference from what is existing right away, what would change in your attitude as a police officer when you're faced with a situation where at the beginning everything is fine. It's always when it starts becoming “the riot”, when it's the illegal assembly, that the problems occur.

I don't see much difference from what exists right now and how we could prevent the whole situation from happening altogether.

11:20 a.m.

Former Member, Royal Canadian Mounted Police, As an Individual

Patrick Webb

I agree.

I think the point is about the intent of people. In my experience, with a major event there is a very high degree of contact between protesters of all groups and security personnel. Everybody wants to be clear on what is going to happen. There is probably much more contact than the public realizes; that is, the negotiation and agreement on what will happen. If the vast majority of people realize that it would be illegal—if this act passes—to wear a mask, then the vast majority will not be wearing masks.

11:20 a.m.

NDP

Françoise Boivin Gatineau, QC

I correct you.

It won't be illegal to wear the mask. It seems to be a running phrase in the population right now. It will be illegal to wear a mask if you're participating in a riot. To be totally perfect and not face those situations you would have to forbid the mask or disguise altogether, which will never happen in Canada because of our Charter of Rights. I don't think you disagree with the Charter of Rights and the freedom of expression as long as it's done in an orderly fashion.

11:20 a.m.

Former Member, Royal Canadian Mounted Police, As an Individual

Patrick Webb

From a policing point of view, there would have to be clarity with the protest group to have them realize that you're fine to wear a mask anytime, anywhere. If a riot is declared or an unlawful assembly is declared, then that mask has to come off or you're deemed illegal.