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

11:35 a.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

In fact, with a peaceful protest doesn't law enforcement often dialogue with those organizing it, and even walk along with them, and make sure that everything is in order? You want to protect those who peacefully protest in those situations, do you not?

11:35 a.m.

Former Member, Royal Canadian Mounted Police, As an Individual

Patrick Webb

That's absolutely true. I've had a lot of contact with people who are protesting. We are Canadian citizens as well. We want to be able to ensure they get their right to be heard. My experience is that the very few numbers of essentially anarchists out there to hijack it are making that voice concealed. They can't hear that voice at all.

11:35 a.m.

Conservative

Kerry-Lynne Findlay Delta—Richmond East, BC

I'm very mindful of what my colleague has raised, being a British Columbia member of Parliament, that of the so-far 226 approved charges, only two have been under subsection 351(2) in the Criminal Code.

We have heard testimony previously, for instance, of the severe beating of a law-abiding citizen during the recent Vancouver riots where all the individuals beating that law-abiding citizen were masked and disguised. As you've correctly pointed out, identification is a very difficult problem.

I'd like it if you would elaborate a little more on your own training regarding mob mentality, crowd management, security planning, and indicate the kinds of difficulties that arise. You've talked about some very high-profile events you've been involved in.

When you're trying to deal with events such as those dealing with masked individuals, can you give us an on-the-ground sense of what you're dealing with in those situations when they get out of hand?

11:40 a.m.

Former Member, Royal Canadian Mounted Police, As an Individual

Patrick Webb

The biggest difficulty in those situations is there's a very large number of people. We have found both prior to having discussions with protesters and then in subsequent discussions with protesters afterwards that the common theme on that is the majority of protesters got caught up into something they did not want to see happen. As I mentioned, that stifles their own ability to get their voice heard.

In addition, we also noticed.... As you're from B.C., you're familiar with a young man who apparently would never have participated in the actions he did, except he went along with all the other people around him who were doing violence and destruction. He's paid the price because he was identified.

The difficulty we have is you cannot proceed with a charge on any individual until that person is satisfactorily identified. In other words, you can go to court and make it absolutely crystal clear that that was the person who did those actions.

11:40 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Mr. Scott.

May 8th, 2012 / 11:40 a.m.

NDP

Craig Scott Toronto—Danforth, ON

Thank you, Mr. Chair.

I'd like to bring Professor Stribopoulos back in on two quick points.

Professor Stribopoulos, at one point Mr. Webb referred to the situation of when someone is “just standing and wearing a mask” after a riot or an unlawful assembly has been declared, that criminalizes them under this provision. Do you have any problems with the notion that simply by your being in the middle of a riot or an unlawful assembly, this provision would catch you? That's the first question.

Secondly, let me quote something from another police officer and ask you what you think about this. This is Chief Constable Graham of Victoria:

The challenge with this offence is that it demands an almost unattainable standard for effective, proactive policing. It requires the crown to prove the intention to commit one or more specific indictable offences. Although that would allow for the arrest of a masked person who participates in a riot once it has started,

--so he's already conceding that section 351 is adequate--

it does very little to prevent the riot from occurring in the first place. In contrast, Bill C-309, by creating a specific offence for wearing a mask while taking part in a riot or unlawful assembly, could allow for a pre-emptive arrest under the “about to commit” sections of the Criminal Code when an agitator “masks up”, as we call it. This would help provide proactive arrest authority to remove these instigators before things get out of control.

Do you understand that language as allowing for pre-emptive arrests triggered by this proposed amendment?

11:40 a.m.

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

James Stribopoulos

I'm really troubled that the quoted passage and what the witness has already said could lead to that conclusion. If this is the way it's being read by police, it's really disconcerting.

11:40 a.m.

NDP

Craig Scott Toronto—Danforth, ON

It is indeed the way it's being read, presented, and talked about.

11:40 a.m.

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

James Stribopoulos

Yes, well, I'm troubled by that, Mr. Scott.

Section 65 says that it's an offence to take part in a riot. That actually requires active participation, being engaged in a riot. Simply standing by as other people are engaged in a riot is not an offence. It's only an offence if the riot act is read, and those distinctions have been blurred by the other witness.

The riot act can be read at a certain point, and then that would obligate people to disperse. But that's not a precondition to a riot. A riot can take place without the riot act being read.

Someone is guilty of an offence if they take part in a riot. They have to actively engage in the violence and the tumult. Simply passively acquiescing, being on the perimeter because one is a lawful protester engaged in legitimate political dissent, doesn't make one guilty of a crime.

If this provision could be read so that a Muslim woman wearing a face covering at a public gathering that becomes violent on the part of a small cluster or clutch of anarchist protesters could be swept up and arrested, I'm really troubled by that. I fear that's the way this provision is being construed by its proponents.

We do not require a provision to allow the police to arrest masked rioters. Subsection 351(2) does that. The only reason that there have been simply two arrested from the Vancouver riot for that offence is that once you put on a mask, it's hard to figure out who you are. It's not a question of the law not creating the requisite offence. It's there in subsection 351(2). It's an enforcement problem, figuring out who the people are behind the masks.

This doesn't change that. We have what we need in terms of the legal tools. Why are we going to clutter the Criminal Code further with unnecessary offences? This document has grown and grown and grown. One of the biggest challenges for the people involved in the enforcement of the criminal law is figuring out which provision to charge, how to navigate the labyrinth. You're suggesting adding needlessly to the labyrinth.

I just don't understand, frankly. I apologize if I'm becoming emotional, but as a law professor, it's very frustrating to think that those who have the power to change the code in a constructive way ignore the reams of paper that are on the shelf in the Law Reform Commission of Canada from the 1980s to address real problems with this document that academics and experts have been studying for years and pronouncing about in their scholarship and in the Law Reform Commission reports. Instead we end up with this draft bill that tries to solve a problem that doesn't exist.

11:45 a.m.

NDP

Craig Scott Toronto—Danforth, ON

Thank you, Professor Stribopoulos.

I will now just throw it to Mr. Webb to give him a chance to possibly clarify.

When you did say, Mr. Webb, that when someone is just standing wearing a mask after a riot or an unlawful assembly has been declared, did you really mean that that would be covered by this provision?

11:45 a.m.

Former Member, Royal Canadian Mounted Police, As an Individual

Patrick Webb

Theoretically, it is covered by that provision.

11:45 a.m.

NDP

Craig Scott Toronto—Danforth, ON

So theoretically, you're relying entirely on discretion as the way to get out of this theoretical criminality.

11:45 a.m.

Former Member, Royal Canadian Mounted Police, As an Individual

Patrick Webb

Discretion is relied upon by policing everywhere, every time.

11:45 a.m.

NDP

Craig Scott Toronto—Danforth, ON

Sure, but we don't normally criminalize and rely on discretion to keep people non-criminals who shouldn't be considered criminal.

Thank you.

11:45 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Go ahead, Mr. Woodworth.