Bill C-309 (Historical)

Preventing Persons from Concealing Their Identity during Riots and Unlawful Assemblies Act

An Act to amend the Criminal Code (concealment of identity)

This enactment amends the Criminal Code to make it an offence to wear a mask or other disguise to conceal one’s identity while taking part in a riot or an unlawful assembly.

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

Thank you, Mr. Chairman.

Personally, I am in favour of the amendment. No one wants to see people committing offences or engaging in criminal activities. Mr. Champ stated in his testimony that Bill C-309 would limit the right to freedom of expression, privacy, the presumption of innocence and freedom of association. There have been a number of Charter challenges relating to similar pieces of legislation.

I would simply like to point out that, last Tuesday, Prof. Stribopoulos stated that there was some confusion about sections 309 and 351. He also said that this would make the operation of the judicial system more cumbersome. Out of a concern to ensure consistency with principles of legal interpretation and in order to clarify things—in the unamended wording, the scope of these principles is too broad—I intend to support the amendment moved by Françoise this morning.

Thank you, Mr. Chairman.

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

Thank you, Mr. Chairman.

When I'm confronted with a difficult problem, I try to use plain old common sense and I especially like using very vivid images to illustrate it. It has to do with the fact that I believe in God. I always try to follow Christ's example. We all know that, in the Scriptures, he used parables to denounce completely unacceptable social realities, in order to make them understandable to the people listening to him.

In my other life, I worked for Ameublements Tanguay for 12 years. I met an enormous number of people during that time. I learned a lot about life. As I listened to my colleague, Françoise, I was reminded of one person I met there. A security guard, who was taking very advanced training to become a security consultant, so that he wouldn't have to be just a salesman selling security systems and equipment, had developed an integrated security concept based on available means and a specific configuration. Working with his client, he saw what it could look like. That man, who also worked at Ameublements Tanguay, pointed to the Frost fence surrounding the warehouse transfer yard, which had barbed wire at the top. He told me it was a way of preventing honest people from inadvertently entering private property.

That example, which may seem ridiculous at first glance, was a very strong image. When it comes to public safety and security, the main problem is that the means used to prevent people from committing a crime have to be balanced. The purpose is perfectly legitimate, as is the case for our colleagues opposite. But we need to avoid security systems that are overly sophisticated, massive and brutal that end up placing tremendous restrictions on individual and collective freedom. People have to be able to move around, assemble and express themselves in public.

Colleagues opposite are poised to reject my colleague's amendment. They want to hide behind a false sense of security by putting up a Frost fence that will considerably limit the freedom of expression of honest people, and the legitimate right of assembly and the right to express one's views in public. That is very disappointing.

I am going to reverse what could be called the burden of proof. No one among the colleagues who have spoken this morning or the witnesses we heard in previous days—and I do mean no one—has been able to assure members of this committee that honest people attending a demonstration which unfortunately gets out of hand and turns into a riot, or who involuntarily end up in an unlawful assembly, will not suffer considerable harm as a result of the provisions of Bill C-309.

Unfortunately, we are not lacking even very recent examples of massive arrests made using the tools currently available under the Criminal Code. I cited the example of 49 arrests made at the Cégep de Limoilou in Beauport-Limoilou at a gathering of three people. That is a terribly high ratio of arrests for a gathering that was intended to be peaceful, yet where excessive means seemed to have been used. I won't make any predictions as to the results of future court summons. An enormous number of people were arrested, including one student who is totally opposed to the strike and is now forced to challenge a fine of about $500. I also reminded the committee of the assemblies, indeed, all the unfortunate events that occurred during the G-20 Summit in Toronto.

I did not intend to go on at length about this and provide a demonstration. I believe my examples were quite eloquent.

Unfortunately, the bill, in its current form, is far more likely to cause harm to honest people than allow our police to legitimately prevent people from committing crimes during unlawful assemblies or riots. What is truly unfortunate is that we are creating a public space that will increasingly be an obstacle course—a space that will be very difficult to access if you are someone wanting to express your opinion, assemble freely and exercise your legitimate right to live your life as a citizen. That is very worrisome. I will conclude on that note.

Thank you.

[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.

[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.

[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.

[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.

[Carole Morency]

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 committee hearings, that examples have been given. Wearing a facial covering for religious purposes would be a lawful excuse. It could be for a health reason. It could be otherwise.

But the way it would work is that in the situation where it's made out that the accused was wearing a mask and the crown leads evidence to indicate that it's for the intent of concealing their identity, then the accused could point to evidence. The burden is not on the accused. All the accused has to do is to point to some credible evidence to show that there was reason, and then it shifts back to the crown to prove that it was not a lawful reason in the circumstances.

[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.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

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

[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.

[Robert Goguen, Conservative, 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—

[Françoise Boivin, NDP, 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.

[The Chair, Conservative, 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.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you very much, Mr. Chair.

I would like to add a few words. I am from Vancouver, and we often use the example of the Stanley Cup riot. I agree with Ms. Boivin that those unlawful assemblies during the Stanley Cup in Vancouver were disgusting and disturbing. In a society like ours, we must have the tools to prevent those actions and to react. The work of police officers is very important and we have to support them in a balanced way.

Just now, one of the witnesses told us that we have to find a balance between the right to participate in a demonstration and the need for security in our society for individuals and their property. I agree that we are all seeking that balance. However, from what I have heard today, I am concerned that we are not looking for balance, but for a way to make the work of police officers easier, at the expense of the rights of individuals and their right to express themselves, as they have always done in our western democratic society.

I asked our witness Mr. Webb about the possibility of innocent people being caught in the net of police officers because of Bill C-309. I am talking about people with no intent to be violent or to create a riot. He said that, if police officers arrest someone who does not intend to be violent or to break the law, it does not matter because they would be found innocent in court. A Conservative member then said that that was impossible because, when you participate in an unlawful assembly, you are not innocent, but that those who do not intend to create a riot will not be arrested. I do not agree with that, and that is the Gordian knot of the NDP amendment.

I would like to tell you a little story in relation to our current debate. I want to talk about the crowd that was out in the streets during the 2010 Winter Olympics. On the first night of the Olympics, hundreds of thousands of people were out on Georgia Street. There was a parade with celebrities. There were a lot of people. The crowd was not aggressive and it did not intend to create problems or to be violent.

Among those people, there were people from Vancouver and elsewhere. There was also a small group of masked people with black clothing. They were basically professional activists. They were there to create trouble. That is concerning, I agree.

At any rate, things happened during the night. I saw it on TV, like everyone else here. There were 20 or 30 young people dressed like that. They broke the windows of the Bay. That was violence against property. What did the police do? They watched them and did not arrest them. Nothing ever happened. No one else was involved in that...

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

I'd also like to speak to our proposed amendment and ask that our colleagues on the committee consider seriously what the amendment is trying to do. It is trying to go to the very core of the examples we kept hearing from the witnesses about the real concerns that need to be addressed: the kinds of groups, the criminals who arrive, and people who are already arriving with criminal intent to engage in the kinds of tactics that several of the police witnesses described to us. In order to achieve that, we believe, frankly, that the existing provision is adequate.

Part of the problem is simply the problem of police enforcement, as our colleague Irwin Cotler spoke to last session. It's not at all clear if we're going to get very far beyond that and still stay true to the principles of both the Constitution and the general principles of criminal law, where intentionality is extremely important.

That being said, we're willing to move a little bit and accept that by moving our amendment on unlawful assembly there is some room for a mask or disguise provision that touches on non-indictable contexts. So please see our amendment not at all as obstructionism, but rather an attempt to get to where the concern seems to be from the witnesses who were called.

That being said, I am a bit concerned that we have a ships-passing-in-the-night problem in terms of at least some members of the committee and a couple of the witnesses—I think in particular of Chief Constable Graham—who have a very different idea of what these words should mean. They've been reading them in a way that just is not at all supported by the text of Mr. Richards' bill.

My concern is that if, after studying a bill with so few provisions, police officers are coming and referring to different things that this will allow them to do as tools, and which seem to go well beyond the text, we have real reason for concern. A refocus on intentionality as being at the centre of our criminal law is really needed.

Let me start now with a quick point on overbreadth. Mr. Richards, at one point in his presentation, said the following:

This legislation is clearly designed to deal with a criminal element who would try to take advantage of a large public gathering of some type in order to cause mischief, mayhem, and damage.

We heard quite a few references to the Black Bloc and to violence. This kind of activity is really what everybody is concerned about.

My concern is that this is not clearly designed to achieve that, especially when we add the kinds of interpretations we've been hearing. It is not well written at all to get after those elements, except with overly broad provisions. I'm going to, on a few occasions, explain the kinds of dangerous situations that will arise, or problematic situations that will arise to show that overbreadth.

Perhaps one of my biggest concerns, as presented by a couple of the witnesses and very close to this by Mr. Woodworth in his questioning, is that we're looking at something that's closer to a strict liability offence, in the way it's being interpreted, than to a traditional Criminal Code offence. At one point Mr. Richards said the following, referring to a riot or an unlawful assembly having been declared by the police: “That situation is declared and at that point it becomes illegal to be wearing a disguise.”

We also heard from today's witness, Mr. Webb, about where someone is “just standing wearing a mask”, the act becomes criminal and at that point it's a matter of discretionary policing to make sure that people who shouldn't be charged are not charged.

The thing is that's not substantiated by the text of Bill C-309, yet it's what is constantly being presented as what this actually means.

Mr. Richards' amendment to the Criminal Code has two elements that clearly imply serious intentionality standards. If it were to pass, I would ask the legal profession and the courts to come back to our discussions and understand that not all of us agree with the interpretations we've been hearing.

First of all, there is a prefatory clause saying “Every person who commits an offence under subsection (1)”. We already know that the case law makes it extremely clear that subjective elements are part of being chargeable as a member of a riot or an unlawful assembly. So that's the first intentionality.

The second one is the following. Mr. Woodworth kept focusing on the fact of wearing the mask, the intent to wear the mask, as being the intentional element. Well, that's not at all what this says. It says “wearing a mask or other disguise to conceal their identity”. So there's a form of specific intent written into this. In French it's even clearer. This should have been written with something like “with the purpose of concealing their identity”. In French it says,

“dans le but de dissimuler son identité”.

So there are two clearly written intentional elements to this that keep getting glossed over in some of the justifications for this provision. The fact that these justifications are being made despite this clarity of language causes me great concern.

I think the chill problem is a real one. I know that members opposite maybe think it's being overblown. I think it's really important that we recognize that all the police witnesses are completely committed to the values underlying our free and democratic society--the right of freedom of expression and the right of free assembly making it possible, as one of the witnesses said, for families to come and demonstrate. This was one of his concerns. All of that's a given. But there is a chill problem in the sense that if it's applied in the way the police want to apply it, for it to be effective it will actually have to chill the wearing of masks by everyone, and not just the criminal element they've been focusing on as being the core concern.

Mr. Richards said the following in his presentation: “Obviously, when someone has to think twice about facing penalties for being disguised, they'll think twice about being disguised...”. He then went on to talk about engaging in the criminal acts that are the concern. That logic applies to everybody.

I can tell you right now that without an educational campaign and without factoring out the kinds of interpretations that we've been hearing from members such as Mr. Woodworth, the average citizen is going to think that the moment they are standing in the middle of a situation that's been declared a riot or an unlawful assembly, they are now engaging in criminal behaviour. What do you think that will do to people's willingness to actually wear a mask as part of their expressive activity? I think it will have a chilling effect. Absent an educational campaign that actually makes clear that Mr. Woodworth's interpretations are erroneous, then we have a serious problem of a chilling effect.

I'd also like to speak to this reliance on discretion. It is true, of course, that police and prosecutorial discretion is central to the way a healthy criminal justice system has to work. But we don't plan on discretion as being the way, for the majority of cases, for criminal law not to apply. Given the kinds of examples given by Mr. Woodworth and the last witness, of just being in the middle of a riot or an unlawful assembly being criminal if you're wearing a mask and you haven't taken it off, then the idea of saying yes, you're theoretically criminal, but rely on us, the police, is not the way to build a criminal justice system. It's not something that our traditions, especially as informed by the charter, easily accept. So this reliance on discretion has been overdone, I believe, and we have to make sure that a provision designed to achieve certain results is actually written in a way to achieve the results, at least in a way that the folks supporting it are all onside with what it means.

In the interest of time, I think it also is important to note that the words “tool” and “tool kit” have been used a lot in the testimony, that this would give the police a tool. Sure, but some of the examples of what that tool will allow them to do have been worrying.

I read out earlier the quotation from Chief Constable Graham, where he clearly thinks that once this passes he'll now be able to do something he couldn't do before, which is preventatively arresting people before a riot or an unlawful assembly starts, on the basis of the provision. He may well be right, interpretatively. If it turned out to be a crime to participate in a riot with a mask, then maybe there are preventative things you can do.

The point is that we can't hide the fact that the police want this for preventative reasons.