Justice committee  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?

Justice committee  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 unlaw

Justice committee  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 a

Justice committee  As your remarks indicated, the distinction between the NDP amendment, which would not provide the accused with the defence of a lawful excuse, and Bill C-309 is that the lawful excuse defence is provided for in the bill. I understand, from looking at the comments made in previous

Justice committee  I didn't take any of the remarks to be questioning anything I had provided to the committee. I'm here to serve as an aide, if I may, in terms of further explanation, if that's appropriate.

Justice committee  Again, to come back to my earlier remarks, the proposals in Bill C-309 would only kick in if the offence of rioting or committing or participating in an unlawful assembly have already been made out. The offence is there. The question is that in the facts of the case, did the acc

Justice committee  The accused can point to, as I mentioned earlier.... It's not a reverse onus, but they would look for some credible evidence, or point to some credible evidence as to the reason why they might have been wearing a mask, or disguise, whatever. Then the burden is still on the crown

Justice committee  That would be a common sense interpretation of the words proposed by Bill C-309.

Justice committee  There's a distinction between the amendment and the bill in terms of their approaches to the disguise.

Justice committee  That's correct. The words “without lawful excuse” are not exceptional here. They appear elsewhere in the Criminal Code. Prosecutors, defence attorneys, and courts are well accustomed to interpreting that phrase in the context of each case as it appears before them.

Justice committee  Again, you have to go back to the starting point, which is that the accused—

Justice committee  —has been convicted of having committed the offence. At the same time, if they are wearing a mask to conceal their identity, that's the additional part. You can't ignore the first step.

Justice committee  No, because if they have a lawful excuse—

Justice committee  —that would be why they're wearing it.

Justice committee  I can only assist the committee by looking at the plain language of the words used in the proposal before the committee, which is “wearing a mask or other disguise to conceal their identity without lawful excuse”. It's all relevant. If an individual, in the example that I think h