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

May 10th, 2012 / 11:05 a.m.

Conservative

The Chair Dave MacKenzie

This is meeting 36 of the Standing Committee on Justice and Human Rights. The orders of the day, pursuant to the order of reference of Wednesday, February 15, 2012, are Bill C-309, An Act to amend the Criminal Code (concealment of identity).

We are resuming debate on amendment NDP-1 to clause 2.

I have Madame Boivin.

11:05 a.m.

NDP

Françoise Boivin Gatineau, QC

Thank you, Mr. Chairman.

I will be brief, because I presented all my arguments last Tuesday. I would simply like to add one thing with respect to the NDP's first proposed amendment to Bill C-309. We used only one hour to express our views, after hearing from witnesses. I was therefore surprised to hear government members claiming that we were being obstructionist, as that is not at all the case.

It is important for me to address this question in the context of the committee's work. I can assure you that the only time you will see us filibustering is when you impose time restrictions on us. Otherwise, people will simply be expressing their opinion about what they heard and, as far as I know, that is what democracy is all about.

My colleague, Brian Jean, may disagree with me. We can disagree with one another without being rude. This amendment is not frivolous. It is not completely out of touch with reality. On the contrary, it is supported by a number of witnesses. It seems the people of Canada don't have a clear understanding of this bill's impact. Some people believe—and we see this in polling results or in what some media have been saying—that, once this bill has been passed, it will no longer be possible for anyone to take part in a peaceful and lawful demonstration while wearing a mask or disguise.

That being the case, we will end up with some problems, whether we're talking about Bill C-309, as currently worded, or Bill C-309, as it could be amended to make it more consistent with the Criminal Code and existing charter legislation in Canada.

I am going to stop there, because I simply wanted to point out that we are not filibustering. We are expressing our views with respect to the amendment in a democratic manner.

Thank you, Mr. Chairman.

11:05 a.m.

Conservative

The Chair Dave MacKenzie

Thank you, Madame Boivin.

Mr. Goguen.

11:05 a.m.

Conservative

Robert Goguen Moncton—Riverview—Dieppe, NB

Thank you, Mr. Chair.

Obviously we're talking about NDP amendment one, and I'll start with the obvious: freedom of expression and the right to assembly are constitutionally guaranteed.

It's my take that Bill C-309, once enacted, will operate as a further protection of those rights. We had witness Chief Graham, who at the time of the Vancouver riots was the police chief, and Sargeant Webb, a policing expert in crowd control, both testify. They have explained the extent of the measures police authorities take to ensure that peaceful assembly is protected. There are ongoing communications with the crowd; there's direction of traffic to permit movement. They go to no end to make sure that peaceful assembly is a well-respected constitutional right.

They have also explained how peaceful assemblies can quickly escalate to an unlawful assembly and/or worse, a riot. They explained that those who protest can be categorized into four categories. At one end of the spectrum are those who are expressing a point of view or trying to make their point peacefully.

On the other end of the spectrum there are the anarchists—the Black Bloc, as they are known—whose sole objective is to create mayhem, disruption, and violence. The whole objective of Bill C-309 is to deter the wearing of masks and the disruptive activities that the Black Bloc would undertake. Deterring such activity is a protection of the rights of those who want to peacefully assemble and make their point of view known, as they properly can per the charter.

There has been some talk about section 351 of the Criminal Code, which we're told is sufficient, and that Bill C-309 as it stands is basically not necessary. We had Chief Graham tell us that of all the charges laid in the Vancouver riots, a grand total of two were laid under subsection 351(2). The reason was that it was difficult to identify people. Why? They were wearing masks.

In a sense Bill C-309 is in addition to section of the Criminal Code, and I have stated what I believe its purpose is.

With regard to the current activities that are going in Montreal, it's very timely that this bill is being brought forth. We know this from watching the news about the mayhem going on there. Obviously some of the students are protesting for very valid reasons; others are there to create havoc. It's hard to tell them apart.

Mr. Blake Richards received an email from Alain Cardinal, who is the

Chief of Legal and Internal Affairs for the City of Montreal.

Mr. Cardinal was telling us this:

I saw in the newspaper this morning that the Minister of Justice will support your Bill. If you need testimony from the SPVM (Montreal Police Department), it will be our pleasure to appear before any House Com[m]ittee.

Obviously we won't need his testimony at this point because we have concluded that part of the committee.

Also, I saw there was an article in La Gazette de Montréal where the mayor, Gérald Tremblay, was reported as saying at a news conference that demonstrating was a democratic right but that the citizens had the right to protection from rock-throwing vandals—the Black Bloc section, the anarchists—those disrupt traffic and commit acts of violence. He said:

When demonstrations repeatedly lapse into violence and acts of vandalism, not only are Montrealers made to pay the price, but the image of the city is tarnished as well.... We're not talking here about the Santa Claus Parade, the Carifiesta or [the] Just for Laughs festival.

It's no laughing matter, in any event.

With regard to NDP amendment one, we will be voting against this amendment because in our mind it basically guts the entire intent of the bill. My comments will also hold for NDP amendment two. Number one deals with unlawful assembly and the other deals with the riots. The first amendment deals with the riots.

The NDP motion would create a specific intent offence. This would increase the burden of proof. It would essentially require the crown to adduce evidence from which the court could infer that the accused intended to take part in a riot and disguised him or herself for the purpose of participating in a riot.

In contrast, Bill C-309 only requires that the crown prove the accused participated in a riot and while doing so was disguised. At that point the burden of proof would shift to the accused to prove there was some lawful excuse for concealing his or her identity.

The NDP amendment does not provide the accused with an opportunity to raise a defence that there was some lawful excuse for concealing his or her own identity. This defence would ensure that criminal liability does not attach to persons who wear a mask or other facial coverings for a lawful purpose, such as for religious or cultural reasons, or to protect health or safety.

Lastly, the inclusion of “coloured” in the NDP amendment could be intended to address face painting. This would already be captured by Bill C-309's basket phrase “or other disguise”.

I also note in the Criminal Code the annotation that the terms by the Supreme Court of Canada as having a lawful excuse were upheld because there is a presumption of innocence. I would like to ask the specialists on this—

11:10 a.m.

Conservative

The Chair Dave MacKenzie

The officials.

11:10 a.m.

Conservative

Robert Goguen Moncton—Riverview—Dieppe, NB

—the officials, thank you, to comment on the issue of the burden of proof that the NDP amendment would impose upon the crown. Are they here today?

11:10 a.m.

Conservative

The Chair Dave MacKenzie

Yes.

Would the officials come forward, or an official.

11:10 a.m.

Conservative

Robert Goguen Moncton—Riverview—Dieppe, NB

She's not wearing a striped sweater, Mr. Chair.

11:10 a.m.

Conservative

The Chair Dave MacKenzie

I want to thank you for being here. I hope you heard the question.

Before you begin, if you would identify yourself for the purpose of the record, we'd appreciate it.

11:10 a.m.

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

Good morning. My name is Carole Morency. I'm general counsel with Department of Justice, criminal law policy section.

I believe the question was to explain or address the issue about the specific intent aspect of the amendment NDP-1. Is that correct?

11:10 a.m.

Conservative

Robert Goguen Moncton—Riverview—Dieppe, NB

It would create a specific intent offence. How would this increase the burden of the crown to prove the offence?

11:10 a.m.

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

Carole Morency

I understand the NDP-1 is taken from subsection 351(2). In that section, and as worded in the motion, there would be a requirement for the crown to prove that the accused had the specific intent of committing an offence, in this case the offence under either the riot or the unlawful assembly offence for that purpose, with the specific intent of doing that, and had a mask on toward that end.

In general, specific intent offences are more difficult to prove. They are not the norm; they are more exceptional in the Criminal Code. The crown would have to lead evidence specifically to show that the accused, in that instance, was intending to commit the offence, by participating in a riot or participating in an unlawful assembly. If you look at the case law under subsection 351(2), the courts have been very clear in saying that there has to be that specific intention, and absent that, the case is not made out.

So there is a distinction between the approach proposed in the amendment and the approach proposed in Bill C-309. It is an added element. It is one that can be made out in some cases, but it's an additional thing that the crown has to prove and it does make it more difficult to make out the offence in this case.

11:15 a.m.

Conservative

Robert Goguen Moncton—Riverview—Dieppe, NB

And in Bill C-309 the intent that it will be necessary to prove would be what?

11:15 a.m.

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

Carole Morency

In Bill C-309, the way the bill is proposed, the offence that would be committed is first the offence of riot or unlawful assembly. Then the crown would have to show that the person wore the mask to conceal their identity.

There were some questions, I understand, from looking at the transcripts of the earlier committee meetings, about the approach taken here. The committee might be interested to know that section 255 of the Criminal Code has a similar approach, which is the impaired driving offence. You have a section in that model. If there's an impaired driving offence, it's one penalty, but if the impaired driving causes bodily harm or death, you have a higher penalty that applies. I would suggest this is a similar approach.

11:15 a.m.

Conservative

Robert Goguen Moncton—Riverview—Dieppe, NB

Of course, there is the lawful excuse defence also. I wonder if you could comment on that.