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

May 8th, 2012 / 11:45 a.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

Thank you.

I find the last exchange completely puzzling, because, among other things, the bill we're considering does not simply apply to riots or to participation in a riot; it applies to being a member of an unlawful assembly. And if one is a member of an unlawful assembly and masked, then the act imposes a prohibition. There are reasons for that, and there is nothing untoward about it.

I'd like to begin with Mr. Stribopoulos. I have a question for you, Mr. Stribopoulos, if you've managed to regain control of yourself again. I know you were a bit passionate a moment ago.

Regarding subsection 351(2), do you agree with me that in order to be found guilty of that offence, the disguise in question must be donned with the intention of committing an indictable offence?

11:45 a.m.

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

James Stribopoulos

Yes, for sure, and if you try to create an offence that doesn't have a mens rea requirement—

11:45 a.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

I'm going to ask for your commentary on other matters in a moment, but for now I just want to make sure that we are in agreement that it is what is required under section 351.

11:45 a.m.

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

James Stribopoulos

I agree with you, for sure, sir, most definitely.

11:45 a.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

Under the new act, would you agree with me that simply refusing or failing to remove a mask—whatever intent you had when you donned it—while participating in a riot or being part of an unlawful assembly is the only intentional act required?

11:45 a.m.

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

James Stribopoulos

Unfortunately, the way proposed subsection 65(2) is drafted, you'll notice that it doesn't include any express mens rea language.

11:45 a.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

Just wearing the mask or refusing or neglecting to remove it is the only intentional act, if I can put it that way, while participating in a riot or being part of an unlawful assembly. That's the only intent required. Is that correct?

11:45 a.m.

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

James Stribopoulos

No, sir, I can't agree with you. Unfortunately, the language you're adding isn't apparent on the face of the enactment. It says nothing about an obligation on someone when directed to remove a mask.

11:45 a.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

No, I haven't been talking about being directed to remove a mask. I'm simply saying that if you find yourself in an unlawful assembly and you do not remove your mask, you will potentially be found guilty under the new act. Isn't that correct?

11:45 a.m.

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

James Stribopoulos

I'm sorry, just please clarify. When you say you find yourself in an unlawful assembly, how is it that you know that the assembly is unlawful? Is it because you've been told?

You see, in an unlawful assembly, there are certain elements that need to be satisfied in order for there to be an unlawful assembly. The fact that the police happen to be troubled by the presence of a collection of protesters doesn't make the assembly unlawful. It has to have gotten to the point where it's disturbing the peace tumultuously. That language, as you find it in the code, has been read by the courts as requiring something—

11:50 a.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

Let me stop you there for just a moment. What I'm getting at here is that the heavy intent requirement, the specific intent requirement, of subsection 351(2) is not found in the bill before us. Is that correct?

11:50 a.m.

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

James Stribopoulos

It would be read in, though, by the courts. You can't have a criminal offence without a mens rea requirement. That's the point I was trying to make before.

11:50 a.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

On that point, I guess we will have to agree to disagree, because I don't think the court needs to read in a specific intent to commit a criminal offence, any more than one would have to read in a heavier intent on the possession of stolen property charge.

I thought you had rather a good point when you compared this offence to the analogous situation of theft and possession, and you pointed out that indeed theft and possession both have some elements in common. One could not be convicted of both theft and possession of the same item. Yet you're not suggesting, because of that and because of the potential delay or double-charging or over-charging that would occur, that we should abolish the offence of possession of stolen property, are you?

11:50 a.m.

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

James Stribopoulos

No, of course not, sir. But I have to say, I'm a law professor who teaches future lawyers about criminal law. I teach them about the established principles. The courts have made it crystal clear—our Supreme Court has—that no criminal offence can operate without a mental requirement. It can vary in its requirements, to be sure—

11:50 a.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

I agree.