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 riot.

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

11:50 a.m.

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

James Stribopoulos

—but there will be a mens rea requirement read in. That's just a matter of statutory interpretation.

11:50 a.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

That's correct. For me, the requirement of intent to wear a mask is all that is necessary under the new act, just as the requirement of knowingly possessing property that is stolen is all that's required under the offence of possession of stolen property.

11:50 a.m.

Conservative

The Chair Dave MacKenzie

Thank you, Mr. Woodworth. Time is up.

Mr. Jacob.

11:50 a.m.

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

James Stribopoulos

You're forgetting that this isn't a free-standing offence. It's being added to subsection 65(1), which requires that you be participating in a riot, which has its own mental requirement. You have to know you're participating in a riot; you have to appreciate what's taking place around you. It has to be your intention to engage in positive acts—

11:50 a.m.

Conservative

The Chair Dave MacKenzie

Thank you. We're out of time.

Mr. Jacob, please.

May 8th, 2012 / 11:50 a.m.

NDP

Pierre Jacob Brome—Missisquoi, QC

I'll let you continue, Mr. Stribopoulos.

Bill C-309 affects several fundamental rights and freedoms guaranteed under the Canadian Charter of Rights and Freedoms, such as the freedom of expression and the freedom of association.

Also, in a letter sent to the committee on May 7, 2012, the Canadian Bar Association stressed that Bill C-309 seems to put the burden of providing a lawful excuse for concealing their identity on the accused individuals. So the CBA maintains that the proposed amendments could give rise to constitutional challenges.

What do you think the constitutional validity of Bill C-309 is?

11:50 a.m.

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

James Stribopoulos

My answer depends on how one understands it. Based on the interpretation that's being put forward by some members of the committee and the other witness, I think it's constitutionally problematic on a number of fronts. It could run afoul of the prohibition on reverse onus, which is I think what the Canadian Bar Association is getting at in respect of proving a lawful excuse. But I also worry that it could run afoul of the right to freedom of expression and freedom of peaceful assembly. It could be interpreted as allowing for preventative arrest of people who have not engaged in riotous conduct, who have not actively engaged in acts designed to disturb the peace in a violent way, or in a way that's designed to occasion property damage.

I have no difficulty in criminalizing that kind of conduct, but it already is a crime. Subsection 351(2) makes that a crime. If a rioter puts on a mask to conceal his identity so he can perpetuate the riot, he's guilty of participating in a riot as well as wearing a disguise to commit an indictable offence. This proposed provision doesn't add anything to that. It just creates room for uncertainty that ensnares potentially innocent law-abiding protesters. As a result, I think it is susceptible to constitutional challenge for the reversal of the burden, as was identified by the Canadian Bar Association.

But I have to say I'm more troubled by how it's being understood by the people in the room. Frankly, I don't understand the desire to add this provision to the Criminal Code. I haven't heard anything from anyone that tells me why subsection 351(2) doesn't do the job. This provision will be read to include an intention requirement. You can't get around that. And if you try, the court will invalidate it as violative of the charter. You have to have a minimum mens rea requirement. Section 7 of the charter demands it, and the Supreme Court said as much in 1985 in the motor vehicle reference.

I hope I've answered your question.

11:55 a.m.

NDP

Pierre Jacob Brome—Missisquoi, QC

Thank you.

If, for instance, a demonstrator is wearing a mask with a political leader on it during a demonstration aimed at protesting against that leader's government, do you think that the bill would unconstitutionally limit the ability to take part in that kind of democratic activity if the demonstration later became an unlawful assembly?

11:55 a.m.

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

James Stribopoulos

I think it could. As the provision is apparently being understood by law enforcement, once the declaration is made that there's a riot, just having a mask on and not dispersing immediately would make you guilty of this further offence. It could be a mask of George Bush, the Prime Minister, or some world leader that's being worn for legitimate purposes of political dissent. I think once the declaration is read, if the person is wearing the mask and doesn't immediately disperse, he's guilty of not dispersing when directed as well as this offence.

11:55 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

11:55 a.m.

NDP

Pierre Jacob Brome—Missisquoi, QC

Thank you, Mr. Stribopoulos

11:55 a.m.

Conservative

The Chair Dave MacKenzie

Mr. Seeback.

11:55 a.m.

Conservative

Kyle Seeback Brampton West, ON

Thank you.

Mr. Webb, I'm hearing about confrontations that take place between police and supposedly peaceful protesters. Before that happens, I'm assuming your officers would have the opportunity to explain to people that if they choose to wear a mask during something that becomes an unlawful assembly or a riot there would be criminal sanctions. So I would suggest to you that people who are in those assemblies know full well that if things start to turn unlawful or riotous they should take those masks off. I take it that this would be part of the engagement your officers would have with the crowd.

11:55 a.m.

Former Member, Royal Canadian Mounted Police, As an Individual

Patrick Webb

That is absolutely true.

I was very impressed with how much engagement there is prior to an event. This engagement ensures that the enforcement, the security, and the protesters are all aware of what is going to be permitted and what is not, what is legal and what is not. We engage lawyers to go along and talk with them to explain every new nuance of those laws, so it's rare to have somebody there who's not clear on what is legal and what is not.

11:55 a.m.

Conservative

Kyle Seeback Brampton West, ON

I take it you can't see an example in which some poor person wearing a salmon costume is unknowingly walking around in the midst of a circumstance that has become unlawful or riotous, and that the police would choose to arrest that person. Do you see that as something that's going to happen, as has been suggested by other members of this committee?