Justice committee  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

Justice committee  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.

Justice committee  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 requireme

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

Justice committee  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 a

Justice committee  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

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

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

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

Justice committee  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.

Justice committee  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 the

Justice committee  I'm really troubled that the quoted passage and what the witness has already said could lead to that conclusion. If this is the way it's being read by police, it's really disconcerting.

Justice committee  Yes, well, I'm troubled by that, Mr. Scott. Section 65 says that it's an offence to take part in a riot. That actually requires active participation, being engaged in a riot. Simply standing by as other people are engaged in a riot is not an offence. It's only an offence if the

Justice committee  —with unnecessary charges.

Justice committee  Well, I have sat quietly up until this point, listening to the questions. I have much respect for law enforcement. I don't know the witness, and I appreciate the challenges the police face, but I'm really troubled by what I'm hearing. With regard to this notion that this provisi