Evidence of meeting #36 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 offence.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Carole Morency  Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

11:45 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

It's not to conceal their identity in that context. It's for a religious purpose.

11:45 a.m.

NDP

Craig Scott Toronto—Danforth, ON

Okay. In that answer you've done a lot of work with the words “to conceal identity”, and I note that. It shows that those words could be very helpful. Thank you.

With respect to a peaceful demonstration context, Mr. Goguen, I think, did very well to remind us how the police, as witnesses have emphasized, view their role as being to enhance constitutional rights to peaceful assembly, especially to protect the space for those who want to demonstrate peacefully. I've mentioned this before. Even the example of families wanting to know they can demonstrate safely was brought up by one witness.

In that context, I don't think there's any issue around certain kinds of masking, right? Lots of examples have been given about how people wear masks for expressive reasons. But I want to ask you about the reason for anonymity and how that might interact with concealing identity. If somebody—a member of a diaspora, for example—wears a mask because they fear that a foreign state may have photographers on the side of a demonstration; or others for justified or unjustified reasons, worry that our own state services may on occasion photograph peaceful demonstrations and they therefore want to be anonymous; or somebody thinks that certain employers may scan video of demonstrations to see whether any of their own employees might have been participating, these are all reasons for anonymity.

In the middle of a peaceful demonstration nobody has any issue with that. Does there come a point—again, you've indicated the predicate clause of “after committing an offence”—when you are involved in an unlawful assembly or riot that the anonymity reason is no longer a lawful excuse, so if you're caught in the middle of something you would then have to take off your mask, if your reason for wearing the mask is to be anonymous?

11:50 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

You're asking me to speculate how a court might turn its mind to it in a specific case?

11:50 a.m.

NDP

Craig Scott Toronto—Danforth, ON

I'm asking how the police would have to do it before we even get to the courts.

11:50 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

It's not unusual for the police in this situation or in any other situation to have to bring their judgment and expertise to bear on the facts that present to them. This committee has heard lots of evidence already from some police witnesses about their experience in this area and how they routinely exercise discretion in these situations.

I can only suggest to the committee that the language “without lawful excuse” is one that all players in the criminal justice system are familiar with and, ultimately, if it proceeded to that level, a court would look at all the facts and circumstances and have to make a decision. Was there a lawful excuse in that situation for that accused who has committed either the offence of participating in a riot or unlawful assembly and has persisted in wearing the disguise for the purpose of concealing their identity? All that would be before the court.

All I can say, as I've already indicated, is that when the police appeared before this committee, I think they indicated that they exercise discretion quite a bit in these types of situations. My understanding of how Bill C-309 is proposing to address the law here is that you're dealing with a situation that is no longer a lawful assembly, a lawful gathering, but has transgressed into a riot or an unlawful assembly. I think those factors are before the police.

11:50 a.m.

NDP

Craig Scott Toronto—Danforth, ON

I find that very helpful. Thank you.

I just have one last question. Emphasizing that our amendment requires specific intent, it's an intent to commit an offence, which itself requires intent. I'm not sure how the two interact in any way that makes that meaningfully specific intent, but we'll leave that to one side and ask the following. I could be wrong, but my understanding is that the courts have imported at least some elements of subjectivity to the crimes of participating in a riot or an unlawful assembly; it's not simply being caught in either of those that criminalizes it. Is that correct?

I ask because this could prove to be extremely important if this does pass, to make sure that it's clear that the predicate condition involves some form of intention to be part of a riot or an unlawful assembly. Do you know whether or not some elements of intention are part of those offences?

11:50 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

I believe the committee has heard some evidence to the effect of how the existing offences work now on riots and non-lawful assembly. Committing either of those offences is not being changed by Bill C-309.

11:50 a.m.

NDP

Craig Scott Toronto—Danforth, ON

Exactly.

May 10th, 2012 / 11:50 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

Bill C-309 is not changing the elements that must be proven in either case.

There is a distinction in terms of what must be shown, obviously, for either offence. The unlawful assembly offence in section 66 is a summary conviction offence; it's a lower-level type of offence. You still have to prove all of the conditions of that offence before one can be convicted of it, including a gathering of three or more persons, etc. But it is possible under that offence for somebody to be convicted, if all of those conditions are present and they are aware of the situation and choose to remain passively acquiescent; there is case law to that effect.

What's important for the committee to recall is that Bill C-309 is not changing the fundamental operation of either of those offences. Rather, it concerns what penalty is to be imposed when a person who has committed one of those offences is also wearing a mask to conceal his or her identity without lawful excuse.

11:50 a.m.

NDP

Craig Scott Toronto—Danforth, ON

Great. Thank you.

You've clarified that the subjective element is knowledge or awareness that something has become a riot or an unlawful assembly, and choosing to stay would be a rough summary of the intentionality, the mens rea dimension.

11:55 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

Well, there is an objective and a subjective component for it.

11:55 a.m.

NDP

Craig Scott Toronto—Danforth, ON

Of course. And so, that would be the subjective element.

11:55 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

Yes.

If, knowing that all of those factors were present, and you have three or more persons present with an intention to carry out a common purpose—and that's assessed on an objective basis—and the actions become tumultuous in the circumstances and those people choose to stay in that assembly for whatever reason, and they have been found to have committed the offence.... Bill C-309 is not changing any of that.

11:55 a.m.

NDP

Craig Scott Toronto—Danforth, ON

Good. Thank you. I find that very helpful. It clarifies and puts us all on the same page. I honestly believe we were already on it, were it not for some testimony that seemed to suggest that the mere objective fact of there being an unlawful assembly or a riot could subject you to this mask offence.

So thank you so much.

I have no other questions.

11:55 a.m.

Conservative

The Chair Dave MacKenzie

Thank you.

Mr. Côté.