Justice Committee on May 8th, 2012

[James Stribopoulos]

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

[Stephen Woodworth, Conservative, 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.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Mr. Woodworth. Time is up.

Mr. Jacob.

[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—

[The Chair, Conservative, Dave MacKenzie]

Thank you. We're out of time.

Mr. Jacob, please.

[Pierre Jacob, NDP, 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?

[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.

[Pierre Jacob, NDP, 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?

[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.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Mr. Stribopoulos

[The Chair, Conservative, Dave MacKenzie]

Mr. Seeback.

[Kyle Seeback, Conservative, 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.

[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.

[Kyle Seeback, Conservative, 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?

[Patrick Webb]

I can't see someone in that type of situation ever being arrested, because that would be ludicrous to go before the courts with.

[Kyle Seeback, Conservative, Brampton West, ON]

Right.

Mr. Chair, I'm going to share my time with Mr. Woodworth.

[The Chair, Conservative, Dave MacKenzie]

Be very brief. We're almost out of time.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much.

I'll just say to Mr. Stribopoulos, then, that the fact is that the intent requirement is present in this act; however, it is a degree of intent that is much less culpable than an intent to commit an indictable offence. It is only an intent to wear a mask.

I will say that the reason we don't abolish the offence of possession of stolen property is that it would make thefts easier to commit if it were legal for everyone to possess property that has been stolen. In the same way, by making it prohibited to wear a mask in the circumstances noted in this act, we are helping to preserve public safety by removing the cover that the real wrongdoers will have, if they're surrounded by people who are all wearing masks.

I'm probably out of time at this point.

[The Chair, Conservative, Dave MacKenzie]

You are out of time, absolutely, yes.

I would like to thank both of the witnesses. I think you've brought a great deal to the meeting, and I thank you for that.

We will suspend for a few minutes while we switch over to move to clause-by-clause examination of the bill.

[The Chair, Conservative, Dave MacKenzie]

I'll call the meeting back to order.

Everybody, don't run away when we finish this--if we do. We need about three minutes at the very end to deal with the budget on this particular issue.

On clause 2, I understand there is an NDP amendment.

Ms. Boivin, you have the floor.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Clause 2 of the bill reads as follows:

2. Section 65 of the Criminal Code is renumbered as subsection 65(1) and amended by adding the following: (2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

We suggest the following amendment:

That Bill C-309, in clause 2, be amended by replacing lines 10 to 13 on page 1 with the following: (2) Every one who, with intent to commit an offence under subsection (1), has his or her face masked or coloured or is otherwise disguised is guilty of an.…

It then continues with what is in the bill.

Bill C-309, a private member's bill, was tabled by the colleague here. I would like to thank him for taking this initiative. I think that violent demonstrations, like the recent demonstrations in Victoriaville, Montreal and elsewhere in Quebec, the ones in Toronto during the G8 and G20, and even the riots in Vancouver after the Stanley Cup, are horrifying to almost all reasonable, law-abiding Canadians. The members of the official opposition, of the government and of all other parties in Parliament agree that we need to find ways to tackle this problem.

We understand the logic underlying this bill. Last weekend, the justice minister, the honourable Rob Nicholson, said that the government would support this bill. However, as a sidebar, I would like to say that this kind of bill, in the context in which we could even create new offences, should come from the government and not through the back door from a member. Having said that, I give full marks to the colleague who tabled Bill C-309 for his intentions.

It's obvious that the objective is to prevent people with bad intentions from wreaking havoc during demonstrations that are initially very peaceful and entirely lawful. This situation has become more and more frequent for a few years now. I am convinced that there will always be people with bad intentions, everywhere. Can the bill prevent that in its current state? The way several witnesses—even police force representatives—understand the bill indicates to us that there is a problem with how it's interpreted.

The way the bill currently is, the individual must at least intend to participate in a riot. We can refer to the Criminal Code and all jurisprudence that has been decisive in the case of section 65. But the arguments will be basically the same for section 66. Professor Stribopoulos told us earlier that there had to be criminal intent. In other words, we can't give police forces carte blanche.

Some people listening to us may think this bill will allow any police force to unmask everyone or remove their disguise simply because they are taking part in a demonstration that turns into a riot or an unlawful assembly. But I have the impression that the courts are going to set the record straight and that it may cause some problems.

In addition, the fact that the Criminal Code has similar provisions that are worded differently creates ambiguity. Again, I think Professor Stribopoulos spoke about this in his testimony.

More often than not, this ambiguity is used only by the defence. It is used to raise reasonable doubt, create confusion, mask, if I may use the word, what we are trying to unmask. That isn't the objective that the legislators want to attain. Our role is to use the best terms possible, words that don't leave room for interpretation. You may tell me that this is somewhat idealistic, and that may be. If that was the case, there would no longer be any trials and everything would be very clear. However, it is our duty to ensure that the legislation that we draft here, in Parliament, will be legally binding and beneficial for the people we represent and that they will respect all the legislation that can be applied in the circumstances.

The government has talked at length about what is being done in other countries, including England and Australia or in New York City, in the United States, and so on. We are all aware—and I imagine the government is too—that we have the Canadian Charter of Rights and Freedoms. I didn't call it the "charter of criminals". This charter, which is for all Canadians, stipulates that people have the right to express themselves without fear of getting beaten up for having a different opinion.

This committee recently passed a bill that removed hate speech to foster—and that was the government's argument—freedom of expression. Freedom of expression takes many forms, including how we dress and speak. Having said that, the objective is to ensure that there is as little confusion as possible. Clearly, there is the matter of burden of proof. Subsection 65(2) of Bill C-309 states: "Every person who commits an offence [so, who participates in a riot and intends to participate in one] while wearing a mask or other disguise to conceal their identity without lawful excuse…."

So it will have to be proven that this person tried to conceal his or her identity without lawful excuse. There is a burden of proof. Representatives from the Canadian Bar Association made that very clear to us. I encourage the members who did not read their brief to do so. We got it yesterday, May 7. I wish they could have come and met with us. I think the brief is fairly clear on that. The problematic issue of reversing the burden of proof may be challenged. This may lead to some problems relating to the constitutionality of the bill.

To stay within the specific context of Bill C-309, as I've said from the beginning, the tools already exist for police officers everywhere. The problem is often not that the Criminal Code provisions don't exist, but rather that there are many more people than expected and that there isn't much communication among the demonstration organizers. That should be one indication, by the way.

Let's take the students in Quebec as an example. Police chiefs said that, sometimes, they couldn't contact the people in charge of the demonstrations. If I was a police officer, knowing that a demonstration was going to take place, I would monitor things much more closely because a lack of communication is a sign that there will be problems. That would make me a little more cautious about what action I would take. I would add police officers or I would ask other police forces for help.

In addition, our bills shouldn't mask the fact that there is a real lack of police officers.

There aren't enough police officers or boots on the ground. This isn't the first time we've heard that. The government even made promises about that during the election campaign. So we shouldn't be hiding these gaps with bills that fool Canadians into believing that it won't ever happen again.

When people ask me that if Bill C-309 were to be adopted as is, could events like what happened last weekend in Victoriaville happen again, my answer has to be yes. Would the consequences be the same? If we are able to catch the instigators and the guilty parties, I say good luck. It isn't necessarily easy. It's not a panacea.

This is why we think that we aren't resolving the problem by having a text that is like one that already exists. We've been saying from the beginning that the section exists and that it has already been used. It has been used successfully more than once, according to some witnesses.

If we insist on creating two new offences, including in section 65(2), we need to at least have wording that doesn't contradict another provision because then we will really cause a problem. Does it become a lesser and included offence? Is it a choice? Are these the two offences that police officers will be able to work with? While here, it's clear. The clause says that everyone who, with intent to commit an offence under subsection (1), has his or her face masked or coloured or is otherwise disguised is guilty of an indictable offence.

So that remains faithful to what our colleague presented, meaning that an offence would be created. We think it already exists. So it's a little redundant. However, let's say that we are going to establish it specifically in the context of the section on riots and unlawful assemblies. This might eliminate some discussions that some people could potentially have about the provisions of section 351, which have more to do with offences like armed robbery and things like that.

If we insist on having this new type of provision, thinking that we're creating something new, at least let's do it in respect of the charters, of the right to assemble and to express ourselves, while ensuring that people who are arrested are prosecuted under the full extent of the law, but in accordance with the laws that exist here, in Canada.

As I just said, we think what's important is ensuring that this doesn't happen again. But if it does happen, what tools could the police have? What types of tools do they need to be able to tell the population that it's a problem if they take part in this type of event and wear a disguise.

By the way, this is more consistent with what was in section 351. If I was a defence lawyer and saw the words "while wearing a mask or other disguise to conceal their identity", while section 351 says "his or her face masked or coloured or is otherwise disguised", I would say that the latter seems clearer and more general. Using different expressions could pose a problem, as anyone who has practised criminal law knows. Every aspect of this type is used to try to raise various doubts, namely, whether this type of situation was intended.

When the bill was presented—I think it was back in October—the Quebec Bar also recommended an amendment in its letter to MP Blake Richards, who presented the bill. The last paragraph of the letter dated November 16, 2011 from Claude Provencher, the director general, clearly states that a democratic society cannot restrict the freedom of expression of its citizens who express themselves as part of peaceful demonstrations and who act in a peaceful manner.

So we cannot act preventively. That's perhaps our biggest concern because I don't think that anyone here around the table should claim in the media or to their constituents that the bill in question—Bill C-309—amended or not, will enable the police to arrest people preventively. This isn't the case under the bill. It may be the case in section 31 of the Criminal Code. It's possible because there is still a section that sets out other provisions.

Actually, under the Criminal Code, if a police officer suspects someone of wanting to commit a criminal offence, they can arrest that person. The concept of preventive detention exists, but in other sections. Bill C-309 is not going to help us with prevention. Get that out of your heads, because that is not what the bill says, neither in its current form or its amended form.

I would now like to quote the Barreau du Québec:

The Barreau du Québec submits that the objective of this legislative proposal would be achieved by using the wording of section 351(2) under the current Criminal Code. We propose that the offence specify: “Every one who wears a mask with intent to...”

From a technical perspective, it is the same suggestion that the New Democratic Party made to the government to improve its bill in terms of penalties. We will surely go back to penalties when we debate the government's amendment.

To sum up, we are in favour of the idea. We understand the objective, but we feel that it is already included in subsection 351(2), at least for criminal offences, but not for summary offences. In light of the proposed amendment, we are ready to create that concept. A new offence would be included in subsection 66(2).

In addition, we propose that we use terms that are consistent with those used in the Criminal Code, which have already been reviewed and interpreted by the courts and which are in line with our charters. People have the right to express themselves freely and peacefully, the right to assemble peacefully and freely, without fear of being removed from a crowd for a yes or no, or because their message is not what others want to hear, as long as they do it lawfully, peacefully and in compliance with our legislation.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Côté.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Thank you very much, Mr. Chair.

I agree with my colleague. I would like to talk about the limited resources of our police forces. I have a great example from last week. Actually, I had the pleasure of speaking privately with Bernard Leary, President of the Fraternité des policiers de Québec. Among other things, he reminded me of something that I was probably already familiar with.

From a legal point of view, Quebec City has to have a minimum of 704 serving police officers, given the size of its population. After a drastic drop in the police force—as a result of the amalgamation of the former cities now part of Quebec City—the number is now at 714 police officers. That shows how narrow the margin is. As part of this committee's business, I would also like to take the opportunity to commend the police officers of Quebec City for their work and professionalism. Those police officers are doing a great job with law enforcement. As a result, Quebec City is quite a peaceful place with one of the lowest crime rates in Canada.

Let us talk about what we are seeking to achieve by introducing the amendments. Let's look at the first one. Without meaning to interpret the intentions of police officers, we cannot deny that various incidents have taken place across the country during demonstrations, which, unfortunately, ended up in riots. In a context of limited resources—lack of equipment, shortage of staff, or limitations in work methods for our police officers—we might question whether those police officers have all the necessary tools, in addition to legislative instruments, to do their job, often in situations of riots or demonstrations that become illegal. As an aside, let me mention the Life on Mars series, where you can see the difference in work methods in the UK between 1973 and today.

In terms of these limited resources, some members of the police force had a reaction in some instances. This is about testing the limits and even exceeding them when it comes to the provisions of the Criminal Code. It is one of the concerns that we are trying to address with this amendment. We are trying to avoid preventive arrests. We could even have an offence called the crime of expression.

That is why we have used so many examples of the use of masks. In some cases, it has to do with rallying crowds during demonstrations, where there is no criminal intent. So then they just want to be supportive of the protesters' enthusiasm and, in so doing, make their point. Unfortunately, when the situation escalates, boundaries are broken and demonstrations turn to riots. People wearing masks legally could be arrested at random, even abused.

I would like to mention a case where no masks were involved. That happened a few weeks ago in the riding of Beauport—Limoilou, at Cégep Limoilou. A philosophy professor wanted to teach a course on civil disobedience with the intent of showing support for the student strike. She made her intentions clear. But, as a result of a social media blunder, she was unfortunately accused of wanting to incite violence and of pretty much having criminal intentions. That stopped her from teaching her outdoor course, outside the walls of the CEGEP.

The day the course was supposed to be delivered, a group of CEGEP students, students from other schools and bystanders assembled to show their support for the professor. I would like to draw a parallel to the limited resources and the work of police officers. The Quebec City police took the appropriate precautions since they had been notified about the event well in advance. I can only commend those police officers for how prepared they were; they planned to have an RTC city bus on site in the event they had to make arrests. Arrests were in fact made under a municipal bylaw on the free flow of traffic on public roads.

I don't want to pass judgment on the work of police officers, given arrests are being challenged and, especially, the fines that were handed out during this police operation. I will just finish setting the stage. Seeing that the lecture was not being given, some of the people there spontaneously decided to march into the street, which was in violation of that municipal bylaw. I wouldn't be able to tell you if there were more, but, among the 49 people who were arrested, one of the Cégep Limoilou students was clearly against the student strike. If things had got out of hand, he might even have approved of the arrest of the protesters. He did not agree with the action, with the intent of the philosophy professor and, especially, with the strike action taken by his fellow colleagues.

We can always talk about the G20 summit in Toronto, or other unfortunate examples that show how difficult and demanding the work of police officers is. So we have to be very careful when we determine the legislative tools that we will give them under the Criminal Code. I completely agree with my colleague Ms. Boivin on that. She was very eloquent and is very knowledgeable about the issue. She described the situation well.

Our amendment is meant to be friendly, since we have the same goal, which is to prevent violence and illegal actions. My major concern is that, if we pass the bill as written without amendments, too many people in an illegal assembly or a demonstration could be arbitrarily and unfairly arrested for the simple fact that they are there. Through a series of circumstances, without being warned of the unlawful nature of the event, they could too easily be arrested and be caught in all the red tape of legal proceedings. As a result, their rights to express themselves, to demonstrate and to simply be present at a demonstration or in the area would be violated.

Let me go back to the G20 summit in Toronto. A number of the city's residents, mere bystanders to the demonstrations, were unfortunately arrested. My colleague Craig Scott could confirm that and provide you with more specific examples.

I am telling you this because one of my longtime friends is basically a professional activist in anything related to human rights and major societal issues. Ten years ago, one of the events that he organized was a peaceful demonstration in Quebec City, very far from the walls of the upper town, on the free trade area of the Americas. On a number of occasions, he told me how frustrated he was because rioters took down the fence, thereby obscuring the claims of a peaceful and legitimate demonstration taking place in the lower town, more than one kilometre away from the fence. He was one of the organizers of the demonstration. He also went to Toronto during the G20 protests, as an observer, among other things

On a number of occasions, he was able to acknowledge the work of experienced police officers who had avoided abusive arrests. He told me about experienced detectives or police officers who brought the more enthusiastic police officers back in line. They told them that, if they arrested the protesters, they would not be able to lay charges against them. That longtime activist described the situation well.

Let us go back to the purpose of my Conservative colleague's bill. For one thing, there is the intent to prevent acts of violence, and, for another thing, there is the fact of wearing a mask to commit an offence.

That is why we want to talk about the intent, In full compliance and in line with what has been observed and recommended by the Canadian Bar Association and the Barreau du Québec. I feel it is key to avoiding arrests that could infringe on the right to freedom of expression, the right to demonstrate, the right to assemble and, ultimately, the right of association.

Mr. Chair, it would be a real shame to commit the resources of our courts to cases that, at the end of the day, would turn out to be illegitimate. We would then end up with case law that would force us to get back to working on finding a measure that works; unfortunately, this will only come after creating many victims.

Having mentioned all those aspects, I urge my colleagues opposite to give some serious consideration to our amendment. The purpose of our amendment is to address some of our fears and those of our neighbours both by avoiding people becoming victims and by not allowing people with criminal intentions to run riot anyway.

Mr. Chair, I am a historian by training. One of the oldest principles in military history has to do with fencing with a sword or shield. For every new move on the offensive, you have a new move on the defensive.

Unfortunately, I was not able to ask the witnesses about this, but we could perhaps assume that, despite passing Bill C-309, the groups of organized rioters with criminal intentions could adapt and get around the legislation easily. Meanwhile, this will hurt a lot of people who want to use the mask as a form of expression or to hide their identity and to avoid being harmed in their personal or professional activities. Several of our witnesses have said so.

It is very important to provide our police officers with the proper tools, but we have to make sure that this does not harm law-abiding citizens who exercise their rights.

Thank you very much, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Scott.