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.

[The Speaker, Conservative, Andrew Scheer]

I have the honour to inform the House that when the House did attend His Excellency the Governor General in the Senate chamber, His Excellency was pleased to give, in Her Majesty's name, the royal assent to certain bills:

C-321, An Act to amend the Canada Post Corporation Act (library materials)—Chapter 10, 2013.

C-37, An Act to amend the Criminal Code—Chapter 11, 2013.

C-383, An Act to amend the International Boundary Waters Treaty Act and the International River Improvements Act—Chapter 12, 2013.

S-9, An Act to amend the Criminal Code—Chapter 13, 2013.

C-47, An Act to enact the Nunavut Planning and Project Assessment Act and the Northwest Territories Surface Rights Board Act and to make related and consequential amendments to other Acts —Chapter 14, 2013.

C-309, An Act to amend the Criminal Code (concealment of identity)—Chapter 15, 2013.

C-43, An Act to amend the Immigration and Refugee Protection Act—Chapter 16, 2013.

S-213, An Act respecting a national day of remembrance to honour Canadian veterans of the Korean War—Chapter 17, 2013.

C-42, An Act to amend the Royal Canadian Mounted Police Act and to make related and consequential amendments to other Acts—Chapter 18, 2013.

S-209, An Act to amend the Criminal Code (prize fights)—Chapter 19, 2013.

S-2, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves—Chapter 20, 2013.

S-8, An Act respecting the safety of drinking water on First Nation lands—Chapter 21, 2013.

C-63, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2014—Chapter 22, 2013.

C-64, An Act for granting to Her Majesty certain sums of money for the federal public administration for the financial year ending March 31, 2014—Chapter 23, 2013.

C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts—Chapter 24, 2013.

C-62, An Act to give effect to the Yale First Nation Final Agreement and to make consequential amendments to other Acts—Chapter 25, 2013.

S-14, An Act to amend the Corruption of Foreign Public Officials Act—Chapter 26, 2013.

S-17, An Act to implement conventions, protocols, agreements and a supplementary convention, concluded between Canada and Namibia, Serbia, Poland, Hong Kong, Luxembourg and Switzerland, for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes—Chapter 27, 2013.

S-15, An Act to amend the Canada National Parks Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to the Canada Shipping Act, 2001—Chapter 28, 2013.

It being 4:24 p.m., the House stands adjourned until Monday, September 16, 2013, at 11 a.m., pursuant to Standing Orders 28(2) and 24(1).

(The House adjourned at 4:24 p.m.)

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

[The Speaker, Conservative, Andrew Scheer]

The House will now proceed to the taking of the deferred recorded division on the motion at third reading of Bill C-309, under private members' business.

The House resumed from October 29 consideration of the motion that Bill C-309, An Act to amend the Criminal Code (concealment of identity), be read the third time and passed.

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, once again, I commend all members of Parliament for the vigorous exchange of ideas over this legislation.

I realize that the vast majority of private members' bills that are introduced in this House never make it to this stage, but they serve the public by advancing the national debate regarding various issues. This, in and of itself, is a worthy outcome.

However, on this matter, debate is not enough. The bottom line is that the perpetrators who are criminalized by this legislation are not lawful protestors. We are not talking about giant pandas, Frosty the Snowman, as some members might suggest, or as members of the media talked about, the PETA seal. I am not looking to criminalize pandas, Frosty the Snowman or seals.

What I am seeking to do here today is to deal with provocative vandalism and violence. It is the destruction of public and private property. It is armed assault. In addition to the crimes they commit, these culprits bring disrepute to the honest and well-intentioned citizens making use of their legal rights to free speech and assembly.

The sad truth is that this is a growing threat. Members of the black bloc have incited protestors to riot across Canada, and in major cities all around the globe. The tactic has been refined and taught to new generations of radical criminals. These felons recognize and fully understand how the current loopholes in our laws, and I will reiterate, loopholes in our current laws, are allowing them to evade justice.

They have been able to exploit this situation to great effect, and they will continue training new recruits in these tactics. They will keep inciting riots, victimizing business owners, assaulting emergency service workers and destroying public property, so long as they believe there is a decent chance they will get away with it.

In the meantime, we continue to send our police and emergency service workers into these volatile situations. By allowing the loopholes in our laws to be maintained, we are asking them to wait until a riot is fully out of control and then stop it dead in its tracks, without damage to private and public property and without injury to themselves or the armed culprits attacking them. It is an impossible task. We might as well ask them to hold back the ocean's tide.

These emergency service workers are more than just a uniform. They are mothers and fathers. They are upstanding citizens, risking their own safety to protect others. They do it because somebody must do it. Quite frankly, they represent the best of our nation, and I applaud them.

Again, that is not enough. It is not enough for us to sit here, hundreds of kilometres and months removed from the maelstrom of mayhem set off by armed and organized thugs, and simply shrug our shoulders. It is not enough to order a report. It is not enough to form a commission. It is not enough to return to the aftermath of riot after another riot and blame a small group of troublemakers before turning our attention to other matters.

It is not enough, not for me, not for members, not for our emergency service workers and certainly not for the citizens of Canada. I bring this proposal today to give our police a crucial tool to do their jobs, to protect the public and return safely home to their families.

This tool in no way restricts citizens' rights to expression or assembly. In fact, it serves to strengthen them. It will ensure that those who come to these events to cause trouble can be brought to justice and discouraged from those kinds of behaviours, so that the people who come to a gathering, for whatever peaceful means, whether it be protest or otherwise, have the ability to do their activities safely and freely.

It simply fulfills the Canadian government's first responsibility, which is to protect Canadian citizens. It offends Canadians' sense of justice to watch these radical criminals incite such mindless violence and then be able to slink away under the cover of their masks.

Our nation is demanding a long-term solution, and that is exactly what Bill C-309 offers. It gives police the ability to better protect public safety. I am asking for the support of all members.

[Michelle Rempel, Conservative, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, it is always a pleasure to speak in the House, especially on a Monday morning with a colleague who has the more beautiful riding, his with the Rocky Mountains and mine with Nose Hill Park. However, that unfortunately is not the subject of debate today.

I am here to support Bill C-309, which was introduced earlier in the year. As a representative of a riding in the core of one of our nation's larger urban centres, I sympathize with the residents and business owners impacted by the destructive activity that occurred during recent riots in the Toronto, Vancouver and Montreal areas.

One of the key priorities of government is to protect its citizens' security. In all of these three cities, the public servants who put themselves at risk to protect innocent bystanders and the homes and property of business owners conducted themselves in an exemplary manner.

As the member for Wild Rose and the Parliamentary Secretary to the Minister of Justice have noted during previous debates in the House, Bill C-309 would give our police an effective tool to better defend our communities against those who choose to engage in violence during a riot, while ensuring that Canadians who choose to express their views in peaceful protest are further protected under the law.

However, some in this chamber do not think police should have this new tool for protecting public safety. For example, on May 7 of this year the member for Saanich—Gulf Islands took to Twitter stating: “Minister of Justice announces full support for PMB [private member's bill] on criminal offence to be masked in protest. No more polar bears in climate marches”.

While there are so many things wrong with this statement, the tone being one of them, frankly, let me start by noting that the member in question seems to have trouble distinguishing between a riot, which is not lawful and the subject of the bill, and peaceful protest, which is lawful. For her benefit I will clarify.

As we recently saw in Toronto, Montreal and Vancouver, lighting objects on fire and projecting them at law enforcement officials and wilfully destroying public and private property are hallmarks of a riot or unlawful assembly. A gathering of people choosing to stand peacefully in a law-abiding forum in support of issues, for example, climate change, would not be classified as a riot or unlawful assembly. As I enjoy debating the member in the House and in other forums and know her well, I find it hard to believe that she does not understand this distinction and has chosen to be flippant about the true purpose of this legislation. Actually reading the bill clearly shows it would not target people who wear masks or costumes that may conceal their identity while they are engaged in lawful protests, marches, gatherings or other activities commonly associated with the exercise of freedom and expression of lawful assembly.

I will re-emphasize for extra clarity that this bill would not affect people who are protesting peacefully or are within the context of a law-abiding activity. This legislation would affect people when the riot act has been invoked or a gathering has been deemed an unlawful assembly, as defined by the Criminal Code of Canada, and who don a mask to conceal their identity for that purpose.

I will go back to clarifying some of my colleague from Saanich—Gulf Islands' further misconceptions about the bill.

On September 19 the member returned to Twitter and wrote: “If a peaceful event gets out of hand and it's winter and you have a scarf on. 20 years in jail?” This statement is false, blatantly misleading and hyperbolic. However, it is the perfect example of false arguments that have been used to attack the bill. As such, I will walk through the flawed logic of this statement as well as some of the other similar statements made in the House today.

As I said earlier, for Bill C-309 to apply the accused must be wearing a mask or disguise for the specific purpose of concealing his or her identity during a riot or unlawful assembly.

However, what about the case of a gathering that descends into a riot? To this I would say that the best way to avoid participating in a riot is to not participate in a riot. I do not make this statement in jest or flippantly, because I hold the hope that the majority of our constituents would profess to be able to distinguish between engaging in a peaceful, lawful protest and a riot, as I have outlined in my speech, particularly as our country has a proud and strong tradition of our citizens engaging in peaceful protest to effect change.

It seems that I must also address the member's issue with scarves. This legislation specifically states that the accused must be wearing the disguise without lawful excuse, which is at the core of some of the arguments that have been made in this place this morning. Wearing a scarf to protect oneself against the elements during a lawful gathering is a lawful excuse. Wearing a scarf to conceal one's identity while engaging in violent behaviour, such as wilfully damaging property or attacking police officers during a riot or unlawful gathering as defined by the Criminal Code of our country, would not be a lawful excuse.

The same day that this member made the statement on Twitter, she attempted to completely gut Bill C-309 by proposing amendment after amendment, not with ideas to improve the legislation or debate it, but by replacing clause after clause with empty pages. In doing so, the member failed to note that Bill C-309 would fill a gap in the current law.

To reiterate, at the present time persons who wear masks or disguises with the intent to commit an indictable offence, including taking part in a riot, are subject to an offence under subsection 351(2) of the Criminal Code and are liable to a maximum terms of imprisonment of 10 years. However, subsection 351(2) does not apply to summary conviction offences. This means that the Criminal Code does not specifically address the situation of persons participating in an unlawful assembly who wear masks or other disguises to conceal their identity without lawful excuse.

While some today have tried to argue that the current law adequately covers these offences, as I have just stated, our law enforcement officials have testified that this is not the case. They find this subsection difficult to apply because it was not created for this type of situation. Rather, it was primarily meant to cover situations such as armed robbery. As evidence, and this is absolutely key, out of 15,000 separate criminal acts that were documented in the Vancouver riot, many with video evidence of the perpetrator, only a handful, a very tiny number, of charges were laid under this section, as this section only covers indictable offences. That is why the bill is such an important tool for our law enforcement officials.

To be clear, what this means is that when someone participating in a riot knows that he or she would be captured on video or on a cell phone and puts on a mask during a riot, we will now have a way to hold them to account in a much clearer way than is currently outlined in our present common law.

Fortunately, many other members of Parliament have recognized the merits of debating this important legislation instead of merely gutting it, and I am not talking about government MPs only. For instance, the most recent member for Victoria voted in favour of Bill C-309 at second reading, as did 189 other members. These members recognize the need to address this issue as well as the merit in debating this legislation, rather than making flippant Twitter comments and attempting to gut the bill.

Approval at second reading allowed the House justice committee to further investigate the issue and to hear from one of the constituents of the former member for Victoria, Police Chief Jamie Graham. He called this legislation a progressive, measured and responsible step toward giving the police agencies the legislative tools they need to uphold the law and maintain public safety. That was a comment from one of our valued law enforcement officials who has over 43 years of experience working in the law enforcement field.

Police Chief Graham testified that New York State recently had similar legislation upheld by the courts, and similarly, the United Kingdom and France passed legislation, in 2001 and 2009 respectively, to address similar concerns.

It is a basic tool that Police Chief Graham believes we must give to law enforcement for the reasons I have stated earlier. Speaking to the committee, he said:

There are very specific tactics used to try to dissuade riotous behaviour. We'll do whatever you ask us to do. I provide training and equipment to the officers. The government provides the legislative tools. I am simply suggesting this is one additional tool that I think will be extremely helpful....

We watched the television coverage of the Toronto, Vancouver and Montreal riots. We saw wilful acts of violence. We saw people physically injuring our law enforcement providers, and we also saw the damage it caused to businesses.

Having seen all these things, I would like to believe that no member in this House would vote to deny police this tool to protect the public, the police and legitimate protesters, people who are upholding the Canadian value of peaceful protest.

As I have said before in this House, by denouncing behaviour that is the antithesis of lawful expression and assembly, the bill underscores the Canadian values of freedom, tolerance, respect and rule of law. It also provides additional support for the people who work on the front lines to ensure that these values are upheld. Because of that, I will ask all members in this House to support its passage.

[Scott Brison, Liberal, Kings—Hants, NS]

Mr. Speaker, I am pleased to rise to debate Bill C-309 and its proposed amendments to the Criminal Code pertaining to riots and unlawful assemblies engaged in by those who cover their faces to avoid being identified and/or charged.

Like my colleagues on all sides, I was disturbed and saddened by the images from the Vancouver riots and the lawlessness that was part of them. I can appreciate the desire of the sponsor of the bill to seek legislation to address the incident. However, and regrettably so, this legislation is not the answer for the following reasons, which became evident at committee. There is absolutely nothing to suggest that had this legislation been in the Criminal Code last year, the Vancouver riots would not have happened or that they would have been policed differently or that those who have been punished would face stiffer penalties.

Police officers told committee that rioters who cover their faces to conceal their identities are a particular problem, not only because they are often among the most violent participants but also because they are harder to identify and thus more difficult to bring to justice. To deal with this challenge, police forces across the country have been increasing training and resources for public safety units. They have been developing new approaches and shared best practices to deal with unruly crowds. I applaud these efforts on the part of the Canadian emergency services, as these are indeed what are required to combat rioting effectively.

What is not required are amendments of this nature to the Criminal Code, because laws to deal with rioting and mass rioting already exist. For the sake of comparing the bill before us with the existing law, I refer to section 64 of the Criminal Code, which defines a riot as “an unlawful assembly that has begun to disturb the peace tumultuously”. Section 65, in consequence, states that “Every one who takes part in a riot is guilty of an indictable offence”.

The indictable offence is crucial. If we turn to subsection 351(2) of the Criminal Code, it states: “Every one who, with intent to commit an indictable offence, has his face masked or coloured or is otherwise disguised is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years”. As we can see, the Criminal Code already gives law enforcement the legislative tools necessary to deal with masked rioters. Bill C-309 does not add to them.

The sponsor of the legislation, the member for Wild Rose, has previously stated in the House that the bill differs from the existing law because it gives police the ability to deal pre-emptively with people who conceal their identities in the context of a riot. In his own words, the bill was concerned with “loitering, masked troublemakers”.

If one looks closely, Bill C-309 creates a subsection to section 65 of the code. As such, it can only apply to people who have already committed an offence under section 65 as it presently exists. Simply put, one has to be already engaged in a riot, an offence under the code, to trigger the application of this new subsection. As such, while the member seems to seek a pre-emptive catch-all in the code to prevent masked rioting, this is actually not what is contained in Bill C-309. Even if that were the proposal before us today, it would warrant extensive critique. Any bill that would allow police to detain people simply for standing around while wearing a mask and subject them to as many as 10 years in prison would raise significant issues with respect to the charter and civil liberties.

If law enforcement were to interpret Bill C-309 in this way, as the member for Wild Rose apparently intends, we could expect court challenges on the grounds that such an application of the law was in violation of section 2 of the Charter of Rights and Freedoms with respect to free expression, or section 7 with respect to the protection of “life, liberty and the security of the person”.

Amending the statute to allow for pre-emptive arrests of people wearing masks, as the member suggested was his intent, would be a constitutionally suspect approach. Amending the statute without allowing for such arrests, as Bill C-309 does, is redundant. To be clear, rioting while wearing a mask is denounced by the code. Prosecutors lay charges against those who do so and judges enter convictions in these types of cases. There is nothing to suggest that somehow the addition of this to the Criminal Code would change the course, or would have changed the course, of the Vancouver riots.

I understand why colleagues and those who are listening at home may wonder why, if I am saying that the bill is redundant and would do nothing, I would still express my opposition to it. The truth is that even as it is written, Bill C-309 is problematic from a charter perspective. It states that it applies to those concealing their identity “without lawful excuse”, a term not defined in the statue. I appreciate that all members agree that this law is not meant to target people who cover their faces for religious reasons or sports fans whose faces are painted with team colours. However, I am concerned that if we do not further clarify the bill we risk unintentionally subjecting these people to charges under this legislation.

Surely, if a person with a religious face covering attends a public gathering in good faith and the gathering then becomes a riot in which the person participates, he or she should be charged with rioting. That would be an unintended consequence. However, he or she should not be subject to charges under a statue intended to apply to masked provocateurs. For that reason, it would be preferable to add a clarifying clause specifically denying the “lawful excuse” exemption to include face coverings worn as part of a traditional practice of a culture or religious group, as was previously proposed by the Liberal member of the committee. Such a definition would be a clear demonstration that Canada was eager to defend religious freedom both at home and abroad.

Moreover, beyond the religious concern, colleagues have raised concerns about freedom of expression. For example, those protesting at a rally against a political leader and who wear masks that depict the leader may be doing so not necessarily for the purpose of concealing their identity, even though this would be the result. Ultimately, even if these scenarios were not contemplated by the statute, it would not alter the fundamental problem that this bill criminalizes what is already in fact criminal.

There can be no doubt that rioting is a profoundly troubling phenomenon that Canada must deal with in a serious and effective way. For parliamentarians, that means we must support police efforts to develop better training methods and better crowd control techniques, including increased and strengthened resources to improve communications with revellers and demonstrators, to share best practices, and to increase the number of qualified officers available to deal with large public gatherings. We must ensure that those who violate the law by encouraging rioting and by concealing their identity while doing so face appropriate consequences.

However, by enacting legislation that is redundant on its face, we do not help combat the problem. By wording the bill in such a way that it may unintentionally violate Canadian charter rights, a new problem may also be created.

For these reasons, we find it difficult to support the bill. We encourage all members to recognize that the Criminal Code already deals appropriately with masked rioting. It is our parliamentary duty to correct gaps that exist in the law, but we must also be aware that the law does what it is supposed to do today, and the matter is in another realm entirely.

In conclusion, while we share the hope of colleagues that we will not see riots and unlawful assemblies that result in property damage, injury or worse, this legislation neither accomplishes this purpose nor gets us any closer to doing so.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, Bill C-309, more than any other bill, epitomizes the Conservatives' approach to criminal law: a front page and then a bill. It is that simple.

My colleague gave a very thorough explanation of the reason for Bill C-309 and why the Conservatives brought it forward. Riots occurred after a sports event, the final game of the Stanley Cup. This should have been a very happy occasion, even though the home team had just lost. Unfortunately, it degenerated into a riot, and consequently the Conservatives introduced this bill. This is a private member's bill. The government would never have dared introduce it directly; therefore, it did so indirectly.

There is a problem, which we already raised at second reading of the bill: our Criminal Code should be coherent. That is our concern. It is not about preventing riots or siding with rioters or people who want to use violence. The main problem is that section 351 of the Criminal Code already provides the solution to this problem. In fact, police already have this tool. They can go to a crown prosecutor and lay criminal charges against anyone who wears a mask while committing a crime.

Subsection 351(2) reads as follows:

Disguise with intent

Every one who, with intent to commit an indictable offence, has his face masked or coloured or is otherwise disguised is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

This is fairly broad and covers almost all the cases mentioned, including those that fall under section 65 of the Criminal Code, the provision targeted by Bill C-309, about taking part in a riot. We will come back to this provision. It is clear what the hon. member is trying to do: he is saying that, if a person conceals his or her identity and participates in an unlawful assembly or a riot, which falls under sections 63 and 64 of the Criminal Code, that person is guilty of an indictable offence in one case and an offence punishable on summary conviction in the other.

It is true that subsection 351(2) does not cover the second type of case covered by the hon. member's bill. However—and this was denied by the government throughout the committee process—it is also true section 351 of the Criminal Code does not apply. In fact, we heard it in the answers to questions asked here in this House: the section would apply instead to armed robbery or theft-related cases. The government therefore did not see how it could be used in the case of riots or unlawful assemblies, even though it was proven in committee that this subsection of the Criminal Code has all the latitude required to cover these types of situations. This is so true that the government itself, through the Conservative members on the Standing Committee on Justice and Human Rights, proposed an amendment to insert the sentence set out in subsection 351(2) of the Criminal Code into the bill.

Those who were in the House and who participated in the debate will recall that the hon. member for Wild Rose's initial bill set out a maximum term of imprisonment of five years. I asked questions in committee that showed that subsection 351(2) sets out a maximum sentence of 10 years for committing an offence while wearing a mask or other disguise. In fact, I asked the following questions. Is there not a risk that this will cause confusion for the courts? We know that the Conservatives do not always like court rulings. Once this is before the court, how will it be analyzed? What charges will be brought against the offender? Will the offender be charged under subsection 351(2) or under subsection 65(2)?

It is not always clear. That is why our main point about the government's crime bills has not changed: the government must be careful about using a piecemeal approach.

They change little provisions here and there, because they see the headlines in the paper and decide that they have a mission and they must change something. The tools are sometimes there, but they are simply not used. That is the first thing to consider. It is true that this does not cover offences punishable on summary conviction, but is this the direction we want to go in? Based on the wording of the bill, I have my doubts.

There are some problems with the way the member drafted his bill. Since it covers offences similar to what is found in subsections 65(1) and 351(2) of the Criminal Code, it is problematic that he did not use the same words. We proposed an amendment to at least try to create some logic in the Criminal Code, but the government flat out refused any kind of amendment that would have made sense.

However, in changing the maximum sentence to match subsection 351(2), the Conservatives admitted that what we were saying in committee must not have been so stupid after all. We were saying that there was a connection between subsection 351(2) and what the member was trying to do in his bill, especially in cases of riots. After being amended, the bill now has exactly the same sentence.

That said, according to the bill in front of us:

Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.

That is the other problem I want to address. Police officers told the committee that they needed tools. I believe it. We all saw see what happens when we watch riots on TV, whether they are in Montreal, Toronto or Vancouver. They are absolutely disgraceful. No one supports these kinds of things. No one thinks that freedom of expression means that people are free to break windows, hit others or do whatever they want. Freedom of expression, which is protected in the Canadian Charter of Rights and Freedoms, does not protect that kind of thing. However, our charter clearly states that we have freedom of expression.

If my colleague wants to participate in a protest and what she wants to wear covers her face, no matter what it is, this is not in itself an offence, because she is expressing her opinion. It is a way for her to express herself. That is the problem.

Several witnesses told us very clearly that these kinds of measures would definitely discourage many people from expressing their opinions. Some of my colleagues can explore this issue a little further.

If someone taking part in a legal, peaceful protest decides to wear a mask depicting a prime minister, for instance, to express his or her opinion during the demonstration, and the police suddenly declare that the protest has become a riot or an unlawful assembly, it is not always easy for the people marching at the end of the demonstration to know that it has been declared unlawful and that they are therefore committing an offence under the Criminal Code and are subject to prosecution.

This means there is an extremely dangerous reversal of the burden of proof. The biggest difference between subsection 351(2) and the provisions the member is proposing in this bill is the reverse onus; in other words, it will be up to the accused to demonstrate that he or she had a lawful excuse.

The Conservatives even rejected the amendments aimed at defining lawful excuses, such as a burka or other religious attire. No one knows what “lawful excuse” means in the context of Bill C-309 in its current form.

The major flaws in this bill are cause for serious concern. The committee process certainly did not calm any of these concerns. The only purpose it served was to make the government admit in a roundabout way that this provision already exists and assign the offence an equivalent sentence.

[Blake Richards, Conservative, Wild Rose, AB]

moved that Bill C-309, An Act to amend the Criminal Code (concealment of identity), be read the third time and passed.

Mr. Speaker, it is a pleasure to open debate on Bill C-309 on the concealment of identity.

I first introduced this bill a little more than a year ago on October 3, 2011. At that time, I asked the members of this Parliament to stand up for the business owners and operators, the emergency service workers, the cities and the citizens of our nation left vulnerable by the holes in our current laws.

I am extremely thankful to all the members who have done just that, allowing this legislation to proceed to this critical juncture. Today I ask for the support of this House once again.

Before I get to the technical details of my private member's bill, Bill C-309, I ask my fellow members of Parliament to turn the clock back to the summer of 2010. A full week before the G20 summit, orderly and legal protests began in Toronto. Demonstrations proceeded peacefully for the most part, until a violent group of vandals showed up. On June 26, the first day of the G20 summit, a demonstration of about 10,000 people assembled downtown. A black bloc of about 200, led by hard-core criminals covering their faces and wearing black clothing, broke away from the main group. I ask my fellow members of Parliament: Why did they cover their faces?

Sadly, our nation was about to meet an insidious new form of criminal. These thugs began maliciously destroying vehicles and buildings with previously hidden weapons that they brought for just this purpose. Hammers, flag poles, mailboxes and even chunks of the street were used to cause as much damage as possible. The purpose was not just to terrorize the business owners and communities along Yonge Street, Queen Street West and College Street. They also had an ulterior motive. It was to draw the police away from the main group allowing their accomplices to rouse the peaceful protesters into storming the convention centre. Thankfully, our expertly trained police refused to take the bait and the black bloc of criminals changed back into street clothes and melted away into the crowd.

As the weekend continued, despite the thousands of police officers who were deployed, these masked rioters were successful in turning many ordinarily peaceful citizens into members of a violent mob. Police were forced to use tear gas for the first time in the history of Toronto. They also needed to use rubber bullets and pepper spray. In the end, these criminals caused $2.5 million in damages. Nearly 100 police officers and about 40 private citizens were injured.

They were also successful on another front. They stole the media spotlight from well-meaning citizens who were exercising their rights to expression and assembly. In the aftermath of this disgusting display orchestrated by such thugs, the then mayor of Toronto, David Miller, stated that calling them protesters was “not fair to the people who came to protest”. He was right. These criminals were not protesters. They were something else entirely.

In the wake of the G20 protest, it became apparent that the police needed a new tool to arrest these mask-wearing urban commandos before innocent protesters were incited to such blind destruction. Yet one year later, no such tool had been provided to police when the so-called Stanley Cup riot cut through the heart of Vancouver. We all remember the video images of Wednesday, June 15, 2011, but to truly grasp the desperation of that day, I believe we should turn to the words of Vancouver resident and newspaper columnist Brian Hutchinson, who was at the scene. He wrote:

Blood in our streets. I saw people on the ground, bleeding. Shattered glass everywhere. Police cars set alight. Major bridges are now closed, preventing public access into the downtown core. Transit is plugged up, there’s no way out. More police and fire crews are arriving, from the suburbs, but again, it seems too late.

And as I write this, the sun has just set. Vancouver, what a disgrace.

Rioters caused at least $3 million in damages to the city, as well as to about 90 businesses. Many vehicles, including police cars, were set ablaze. Nearly 150 people were injured, including nine police officers. The damage to Vancouver's reputation and economy is still being felt, so too is the sense of fear.

Speaking before the justice committee earlier this year, Mr. Tony Hunt, general manager of loss prevention for the London Drugs that was pillaged by more than 300 criminals during the riot, put it in terms that we can all understand. He said:

Thirty staff watched in horror as thugs ravaged through the burglar-resistant glass and steel security gates, pounding their way into the store. The staff fled to safety in our basement room barricade, while thieves stole $450,000 worth of expensive merchandise and inflicted $224,000 in physical damage.

The property can be replaced, but the emotional trauma on our staff is just not...acceptable....

Inspector Steve Rai, of the Vancouver Police, reported something similar. He told the justice committee:

Some employees had to lock themselves in back rooms or security rooms, and some of them remain traumatized to this day. We had a famous store that blends coffee near the heart of the riot, and this poor victim had to lock herself in while she heard a mob outside attacking and destroying her business. These kinds of things happened throughout the downtown core during that riot. It affected people's lives.

This was another example of mass criminals leading common, everyday citizens to greater destruction.

As Police Chief Jim Chu told reporters:

These were people who came equipped with masks, goggles and gasoline, even fire extinguishers that they would use as weapons....

Despite the great work of the Vancouver Police Department in identifying 15,000 separate criminal acts, very few people were charged. Despite a heavy media presence, access to closed circuit television and a proliferation of mobile devices, all of which provided ample footage of their misdeeds, many criminals have been able to escape justice.

I cannot emphasize this point enough, the criminals who incited the worst of the violence are not protestors. I have trouble finding the appropriate words to describe the tactics that were employed to turn everyday citizens into crazed mobs. It is insidious. Within the chaos of an all-out riot, they added gasoline to a simmering fire, propelling the mob forward and causing an explosion of violence.

Police have told us that in such volatile situations, law and order could be maintained and public safety protected, if only they had the ability to remove these criminals sooner.

Unfortunately for the citizens and shopkeepers of Montreal, police were not given this ability prior to the vandalism and violence coinciding with this year's student protests. Once again, masked criminals went to work within the crowd, inciting further destruction by rampaging throughout the streets, smashing windows and assaulting police.

We know that something must be done. It is clear what we must do. That is why I brought this legislation forward, and that is why it has received such widespread support both inside and outside this chamber.

Bill C-309, the concealment of identity act, will create two new Criminal Code offences. The first is an indictable offence, targeting those who take part in a riot while wearing a mask or disguise to conceal identity without lawful excuse. The maximum penalty on indictment for this offence would be 10 years in prison.

The second is a hybrid offence, targeting those who participate in an unlawful assembly while wearing a mask or disguise to conceal their identity without lawful excuse. The maximum penalty on indictment for this offence would be five years, and on summary conviction the maximum penalty would be six months imprisonment and/or a maximum fine of $5,000.

The bill would protect the public, police and legitimate protesters. Moreover, it protects freedom of assembly and freedom of expression precisely because it only applies to the criminal thugs who are already breaking the law.

I believe Canadians recognize that there is a difference between honest protesters and the criminal thugs seeking to hide in plain sight behind their masks, inciting mobs to greater violence. That is why I have received such widespread support from police services and chiefs, neighbourhood associations, business groups and individual citizens. Police chiefs in Calgary, Toronto, Vancouver and Victoria have all supported the aims of the legislation.

Chief Constable Chu has endorsed the bill stating:

The Vancouver Police Department is pleased to support this bill. When we see protestors in a crowd donning masks and hoods we know there is a very good chance that violence will soon follow.

Police in neighbouring Victoria also want this problem addressed and in a resolution that was drafted to the Canadian Association of Chiefs of Police, Chief Jamie Graham urged the federal government to take action. According to his resolution, wearing a facial covering allows an offender to blend in and mix with a larger lawful group of peaceful individuals without being identified. There an offender may commit unlawful acts under disguise, then remove their masks or facial coverings and blend in with peaceful protesters. Chief Graham has reviewed the bill before us today and he says:

In short, I think this is a progressive, measured, and responsible step towards giving the police agencies the legislative tools we need to uphold the law and maintain public safety.

The Downtown Vancouver Business Improvement Association, comprised of members who were the hardest hit by the riot in their city, has unanimously endorsed the bill. According to its statement:

June 15, 2011 is a dark moment in our city's history that traumatized thousands of residents, employees and hard-working business people. The property damage incurred that evening combined with the looting that took place is in the millions of dollars. Vancouver's picture postcard image was sullied by the actions of reckless and irresponsible individuals who have no respect for the laws of our country.

On behalf of this group, Charles Gauthier asks that we support the bill. He says:

As our country's lawmakers you can begin the process of rebuilding the public's confidence in our laws by supporting private member's bill C-309 and giving notice to would-be looters, rioters, and criminals that donning a mask, disguise, or other facial covering will be met with the full force of the law.

All of these groups have watched as criminals have refined their black bloc tactics for years in cities around the world. They have also seen other jurisdictions grapple with the same issues that this House faces today.

Laws created to tackle similar situations were written and approved in the United States, the U.K. and France. Like Canada, these are democratic nations where the rights to expression and assembly are vigorously enforced and defended. The courts in these nations have rightly upheld these laws recognizing the distinction between legal protest and illegal rioting.

The masked criminals who work the riots arrive at the scene well prepared. They are armed. They are motivated. We equip and train our police to enforce our laws and to keep our streets safe, yet we know that one key tool is missing from their toolkit: a tool that would help police prevent, de-escalate and control riots; a tool that would spell the difference between legal orderly expression and total destruction of a neighbourhood; a tool that would protect our nation's citizens, emergency service workers, private businesses and public property; a tool that would protect lawful demonstrators' ability to put voice to their beliefs; a tool that would prevent violence on Canadian streets. Let us give our police that tool. Let us do it now. Let us do it today.

Concealment of Identity Act

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, about one year ago, I introduced private member's Bill C-309, the concealment of identity act, which would fill a loophole in our country's laws and provide the police with a tool to protect public safety.

However, I recently learned that the member for Saanich—Gulf Islands has taken to Twitter to mislead Canadians about this bill. On September 19 she wrote, “If a peaceful event gets out of hand...and it's winter...and you have a scarf on...20 years in jail?”

The member knows full well that this bill is not aimed in any way at lawful protestors and yet, here she is accusing me of trying to throw Frosty the Snowman in the big house.

It is time for this lone Green Party member to depart from her fairy tale lands because police chiefs across the country, including Victoria's own Jamie Graham, are supporting this bill.

When it comes up for third reading, I encourage her to rise from this chamber's 309th seat and vote in favour of Bill C-309.

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

[The Speaker, Conservative, Andrew Scheer]

I do not get the sense that there is unanimous consent.

The House will now proceed to the taking of the deferred recorded division on the motion to concur in Bill C-309 at report stage under private members' business.

The House resumed from September 18 consideration of the motion that Bill C-309, An Act to amend the Criminal Code (concealment of identity), as reported (with amendment) from the committee be concurred in.

Speaker's Ruling

[The Deputy Speaker, NDP, Joe Comartin]

There are nine motions in amendment standing on the notice paper for the report stage of Bill C-309.

The Chair has been informed by the sponsor of Motions Nos. 1, 2 and 6 that they will not be proceeded with.

Motions Nos. 3 to 5 and 7 to 9 will not be selected by the Chair as they could have been presented in committee.

There being no motions at report stage, the House will now proceed without debate to the putting of the question on the motion to concur in the bill at report stage.

The House proceeded to the consideration of Bill C-309, An Act to amend the Criminal Code (concealment of identity), as reported with amendment from the committee.

Justice and Human Rights

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 11th report of the Standing Committee on Justice and Human Rights in relation to Bill C-309, An Act to amend the Criminal Code (concealment of identity). The committee has studied the bill and has decided to report the bill back to the House with an amendment.

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

The amendment reads as follows:

That Bill C-309, in Clause 2, be amended by replacing line 15 on page 1 with the following: exceeding ten years.

We're asking that Bill C-309 in clause 2 be amended by replacing line 15 on page 1 with the following: exceeding 10 years

Bill C-309, Mr. Chair, provides a maximum penalty of five years for the offence of taking part in a riot while wearing a mask to conceal identity without lawful excuse. The purpose of the amendment is to ensure that the penalty for this new offence is consistent with the penalty provided for an existing provision of the Criminal Code that addresses similar conduct, and that's subsection 351(2).

Subsection 351(2) of the Criminal Code is a provision of general application and creates an indictable offence punishable by a maximum penalty of 10 years for any person who wears a mask or disguise with the intent of committing an indictable offence. Taking part in a riot is an indictable offence, and therefore an accused who is convicted pursuant to subsection 351(2) of the code of wearing a mask while taking part in a riot is liable to a maximum penalty of 10 years.

So we would be moving it from five to 10 years to keep it consistent with subsection 351(2).

There are two new offences. By raising the maximum penalty to 10 years in proposed subsection 65(2) of the code, the amendment would avoid creating different penalties to punish similar conduct. Notwithstanding that being a member of an unlawful assembly is a precursor to taking part in a riot and is therefore a less serious offence, the penalty in Bill C-10 on indictment for the two new offences is five years. Thus, by raising the maximum penality in subsection 65(2) to 10 years, the amendment would improve the bill by reflecting the fact that taking part in a riot while wearing a mask to conceal identity is more serious than wearing a mask to conceal identity as a member of 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.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Clause 2 of the bill reads as follows:

2. Section 65 of the Criminal Code is renumbered as subsection 65(1) and amended by adding the following: (2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

We suggest the following amendment:

That Bill C-309, in clause 2, be amended by replacing lines 10 to 13 on page 1 with the following: (2) Every one who, with intent to commit an offence under subsection (1), has his or her face masked or coloured or is otherwise disguised is guilty of an.…

It then continues with what is in the bill.

Bill C-309, a private member's bill, was tabled by the colleague here. I would like to thank him for taking this initiative. I think that violent demonstrations, like the recent demonstrations in Victoriaville, Montreal and elsewhere in Quebec, the ones in Toronto during the G8 and G20, and even the riots in Vancouver after the Stanley Cup, are horrifying to almost all reasonable, law-abiding Canadians. The members of the official opposition, of the government and of all other parties in Parliament agree that we need to find ways to tackle this problem.

We understand the logic underlying this bill. Last weekend, the justice minister, the honourable Rob Nicholson, said that the government would support this bill. However, as a sidebar, I would like to say that this kind of bill, in the context in which we could even create new offences, should come from the government and not through the back door from a member. Having said that, I give full marks to the colleague who tabled Bill C-309 for his intentions.

It's obvious that the objective is to prevent people with bad intentions from wreaking havoc during demonstrations that are initially very peaceful and entirely lawful. This situation has become more and more frequent for a few years now. I am convinced that there will always be people with bad intentions, everywhere. Can the bill prevent that in its current state? The way several witnesses—even police force representatives—understand the bill indicates to us that there is a problem with how it's interpreted.

The way the bill currently is, the individual must at least intend to participate in a riot. We can refer to the Criminal Code and all jurisprudence that has been decisive in the case of section 65. But the arguments will be basically the same for section 66. Professor Stribopoulos told us earlier that there had to be criminal intent. In other words, we can't give police forces carte blanche.

Some people listening to us may think this bill will allow any police force to unmask everyone or remove their disguise simply because they are taking part in a demonstration that turns into a riot or an unlawful assembly. But I have the impression that the courts are going to set the record straight and that it may cause some problems.

In addition, the fact that the Criminal Code has similar provisions that are worded differently creates ambiguity. Again, I think Professor Stribopoulos spoke about this in his testimony.

More often than not, this ambiguity is used only by the defence. It is used to raise reasonable doubt, create confusion, mask, if I may use the word, what we are trying to unmask. That isn't the objective that the legislators want to attain. Our role is to use the best terms possible, words that don't leave room for interpretation. You may tell me that this is somewhat idealistic, and that may be. If that was the case, there would no longer be any trials and everything would be very clear. However, it is our duty to ensure that the legislation that we draft here, in Parliament, will be legally binding and beneficial for the people we represent and that they will respect all the legislation that can be applied in the circumstances.

The government has talked at length about what is being done in other countries, including England and Australia or in New York City, in the United States, and so on. We are all aware—and I imagine the government is too—that we have the Canadian Charter of Rights and Freedoms. I didn't call it the "charter of criminals". This charter, which is for all Canadians, stipulates that people have the right to express themselves without fear of getting beaten up for having a different opinion.

This committee recently passed a bill that removed hate speech to foster—and that was the government's argument—freedom of expression. Freedom of expression takes many forms, including how we dress and speak. Having said that, the objective is to ensure that there is as little confusion as possible. Clearly, there is the matter of burden of proof. Subsection 65(2) of Bill C-309 states: "Every person who commits an offence [so, who participates in a riot and intends to participate in one] while wearing a mask or other disguise to conceal their identity without lawful excuse…."

So it will have to be proven that this person tried to conceal his or her identity without lawful excuse. There is a burden of proof. Representatives from the Canadian Bar Association made that very clear to us. I encourage the members who did not read their brief to do so. We got it yesterday, May 7. I wish they could have come and met with us. I think the brief is fairly clear on that. The problematic issue of reversing the burden of proof may be challenged. This may lead to some problems relating to the constitutionality of the bill.

To stay within the specific context of Bill C-309, as I've said from the beginning, the tools already exist for police officers everywhere. The problem is often not that the Criminal Code provisions don't exist, but rather that there are many more people than expected and that there isn't much communication among the demonstration organizers. That should be one indication, by the way.

Let's take the students in Quebec as an example. Police chiefs said that, sometimes, they couldn't contact the people in charge of the demonstrations. If I was a police officer, knowing that a demonstration was going to take place, I would monitor things much more closely because a lack of communication is a sign that there will be problems. That would make me a little more cautious about what action I would take. I would add police officers or I would ask other police forces for help.

In addition, our bills shouldn't mask the fact that there is a real lack of police officers.

There aren't enough police officers or boots on the ground. This isn't the first time we've heard that. The government even made promises about that during the election campaign. So we shouldn't be hiding these gaps with bills that fool Canadians into believing that it won't ever happen again.

When people ask me that if Bill C-309 were to be adopted as is, could events like what happened last weekend in Victoriaville happen again, my answer has to be yes. Would the consequences be the same? If we are able to catch the instigators and the guilty parties, I say good luck. It isn't necessarily easy. It's not a panacea.

This is why we think that we aren't resolving the problem by having a text that is like one that already exists. We've been saying from the beginning that the section exists and that it has already been used. It has been used successfully more than once, according to some witnesses.

If we insist on creating two new offences, including in section 65(2), we need to at least have wording that doesn't contradict another provision because then we will really cause a problem. Does it become a lesser and included offence? Is it a choice? Are these the two offences that police officers will be able to work with? While here, it's clear. The clause says that everyone who, with intent to commit an offence under subsection (1), has his or her face masked or coloured or is otherwise disguised is guilty of an indictable offence.

So that remains faithful to what our colleague presented, meaning that an offence would be created. We think it already exists. So it's a little redundant. However, let's say that we are going to establish it specifically in the context of the section on riots and unlawful assemblies. This might eliminate some discussions that some people could potentially have about the provisions of section 351, which have more to do with offences like armed robbery and things like that.

If we insist on having this new type of provision, thinking that we're creating something new, at least let's do it in respect of the charters, of the right to assemble and to express ourselves, while ensuring that people who are arrested are prosecuted under the full extent of the law, but in accordance with the laws that exist here, in Canada.

As I just said, we think what's important is ensuring that this doesn't happen again. But if it does happen, what tools could the police have? What types of tools do they need to be able to tell the population that it's a problem if they take part in this type of event and wear a disguise.

By the way, this is more consistent with what was in section 351. If I was a defence lawyer and saw the words "while wearing a mask or other disguise to conceal their identity", while section 351 says "his or her face masked or coloured or is otherwise disguised", I would say that the latter seems clearer and more general. Using different expressions could pose a problem, as anyone who has practised criminal law knows. Every aspect of this type is used to try to raise various doubts, namely, whether this type of situation was intended.

When the bill was presented—I think it was back in October—the Quebec Bar also recommended an amendment in its letter to MP Blake Richards, who presented the bill. The last paragraph of the letter dated November 16, 2011 from Claude Provencher, the director general, clearly states that a democratic society cannot restrict the freedom of expression of its citizens who express themselves as part of peaceful demonstrations and who act in a peaceful manner.

So we cannot act preventively. That's perhaps our biggest concern because I don't think that anyone here around the table should claim in the media or to their constituents that the bill in question—Bill C-309—amended or not, will enable the police to arrest people preventively. This isn't the case under the bill. It may be the case in section 31 of the Criminal Code. It's possible because there is still a section that sets out other provisions.

Actually, under the Criminal Code, if a police officer suspects someone of wanting to commit a criminal offence, they can arrest that person. The concept of preventive detention exists, but in other sections. Bill C-309 is not going to help us with prevention. Get that out of your heads, because that is not what the bill says, neither in its current form or its amended form.

I would now like to quote the Barreau du Québec:

The Barreau du Québec submits that the objective of this legislative proposal would be achieved by using the wording of section 351(2) under the current Criminal Code. We propose that the offence specify: “Every one who wears a mask with intent to...”

From a technical perspective, it is the same suggestion that the New Democratic Party made to the government to improve its bill in terms of penalties. We will surely go back to penalties when we debate the government's amendment.

To sum up, we are in favour of the idea. We understand the objective, but we feel that it is already included in subsection 351(2), at least for criminal offences, but not for summary offences. In light of the proposed amendment, we are ready to create that concept. A new offence would be included in subsection 66(2).

In addition, we propose that we use terms that are consistent with those used in the Criminal Code, which have already been reviewed and interpreted by the courts and which are in line with our charters. People have the right to express themselves freely and peacefully, the right to assemble peacefully and freely, without fear of being removed from a crowd for a yes or no, or because their message is not what others want to hear, as long as they do it lawfully, peacefully and in compliance with our legislation.

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

Thank you, Mr. Chair.

I'd like to bring Professor Stribopoulos back in on two quick points.

Professor Stribopoulos, at one point Mr. Webb referred to the situation of when someone is “just standing and wearing a mask” after a riot or an unlawful assembly has been declared, that criminalizes them under this provision. Do you have any problems with the notion that simply by your being in the middle of a riot or an unlawful assembly, this provision would catch you? That's the first question.

Secondly, let me quote something from another police officer and ask you what you think about this. This is Chief Constable Graham of Victoria:

The challenge with this offence is that it demands an almost unattainable standard for effective, proactive policing. It requires the crown to prove the intention to commit one or more specific indictable offences. Although that would allow for the arrest of a masked person who participates in a riot once it has started,

--so he's already conceding that section 351 is adequate--

it does very little to prevent the riot from occurring in the first place. In contrast, Bill C-309, by creating a specific offence for wearing a mask while taking part in a riot or unlawful assembly, could allow for a pre-emptive arrest under the “about to commit” sections of the Criminal Code when an agitator “masks up”, as we call it. This would help provide proactive arrest authority to remove these instigators before things get out of control.

Do you understand that language as allowing for pre-emptive arrests triggered by this proposed amendment?

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you, Mr. Chair.

Mr. Webb, you talked about four different groups and you said that by far the biggest group is those who wouldn't interfere with a criminal act and who are out there in a demonstration to express themselves. Then you said that you see Bill C-309 as being targeted at the fourth group, those who come to commit criminal acts.

You also acknowledged that people come and do wear masks who don't intend to.... I mean, I've recently been at demonstrations with respect to perceived undermining of environmental assessments with respect to pipelines, where people are wearing salmon costumes or they're wearing sea mammal costumes, bird costumes, and costumes that look like an oil slick. So there are a lot of people who are out there expressing their dismay at the government's current legislative direction.

I guess my concern is that you're clear that this bill allows pre-emptive arrests of people with masks. Would you agree that it may well be people in category two and three, who don't have the intent to cause damage or break the law, who would be pre-emptively arrested?

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

Chief Constable Jamie Graham, who was I guess the chief in Vancouver at the time of the riot, testified previously and he commented that Bill C-309 would allow police officers to have the additional benefit of preventive arrest. Are you in agreement with that? Can you comment on that?

[Françoise Boivin, NDP, Gatineau, QC]

I agree, and I think that's the name of the game we're faced with today.

I'm sure you've read Bill C-309.

[James Stribopoulos, Associate Professor, Osgoode Hall Law School School, York University, As an Individual]

That's great. Thank you very much.

Good morning, and thank you for this opportunity to appear before the committee, especially for the accommodation to appear by video conference. I very much appreciate it.

I'm very pleased to be with you this morning to speak to you about concerns I have regarding the proposed legislation, Bill C-309. Let me begin by saying that I understand the motivation behind this legislation very well, and it is commendable. The concern that drives the proposal is undoubtedly the result of what we witnessed here in Toronto, for example, not so recently, but we've witnessed it on other occasions as well, where violence erupts in a public gathering, public order is called into question, and individuals who are bent on engaging in criminal acts of vandalism or violence directed at people or property employ a disguise or a covering to conceal their identity from view so they can act with impunity.

I obviously share the view that I'm sure is shared by most members of the committee that this is something that's completely unacceptable in a free and democratic society and something we should collectively deplore. Thankfully, however, I think we already do.

This is why I have concerns about proposed Bill C-309. In essence, it is this: this is a solution in search of a problem. There is no deficiency in the law that this proposed legislation needs to fix. I'm specifically making reference to an existing provision in the Criminal Code, which is routinely charged, and that is a provision found in subsection 351.(2) of the Criminal Code that makes it an offence, and I quote now directly from the relevant and existing section of the code:

Every one who, with intent to commit an indictable offence, has his face masked or coloured or is otherwise disguised is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

So there is already an offence that can be charged if someone is participating in a riot and covers their face with the intention of facilitating that participation. There is already an existing criminal offence that can be charged to get at that conduct. It's already unlawful. There is already this tool in place for the police to employ when confronted by those participating in a riot or violent tumult, as has been described in the case law, to charge those who cover their faces for the purposes of concealing their identities so they can act with anonymity in engaging in wanton damage of property and acts of violence.

Frankly, therefore, I don't see the need for the proposed amendment to the code. I also fear, and you might say in response, “Oh, what's the harm of adding a provision that's situated more closely to the riot provision and would become a subsection under section 65 so that you'd look at the one and look at the other.“ There are a number of problems with doing that. First, it creates confusion for the police officer in the field as to which offence to charge. There now appear to be two that would be relevant to the conduct they're dealing with. Police officers, not being lawyers, are rightly cautious, and they will tend, when there's more than one offence available, to charge them both. They'll err on the side of caution. They'll overcharge, in the words of commentators who are concerned about that very phenomenon and the impact it has on the criminal process.

Overcharging is something that does result in needless delay as participants come to terms with what ultimately should be the right charge and what offence the accused should plead guilty to or be found guilty of. At the end of a trial, for example, a jury or a judge would return a verdict of guilty for both offences, but then there would be a need for argument regarding the overlap, and the one offence would be judicially stayed. There's established case law; you can't essentially be convicted of the same offence twice. That's double jeopardy, and this would essentially be the same offence.

A common example is when the police sometimes charge theft and also charge possession of property obtained by crime for the very same theft. Obviously, the moment you steal something you possess property obtained by crime. Those two charges can't be sustained to completion. They overlap, and the Supreme Court has indicated as a result that one of the offences has to be stayed.

Why add complication to the code in this way? I would suggest you shouldn't, that we have a law in place to deal with this very kind of conduct, which I agree should be criminal, and thankfully it is.

I do have concerns as well in terms of the wording. I'm getting to my second reason for being concerned about the proposal, the wording of proposed subsection 65(2), versus what we already have in subsection 351(2).

Subsection 351(2) uses express mens rea language. I'm sure you're familiar with what that term means. It's the mental requirement for criminal offences, and it requires expressly that the person donned the mask with the intention of committing an indictable offence. That mental requirement is an important check on the scope and the breadth of the provision. It makes sure, for example, that only in situations where the person's purpose is truly to conceal their identity to facilitate the crime will their conduct be criminalized.

I worry that subsection 65(2) doesn't contain similar mens rea language, and that the language as proposed, “while wearing a mask or other disguise to conceal their identity”, doesn't tie the unlawful purpose back to that action. You can imagine all sorts of circumstances where people are participating in public protests, demonstrations, where they might wear some kind of face-covering or a costume. A very common example of course are sports fans who wear paper bags over their heads in shame. Living in Toronto, I am rather sympathetic to that phenomenon. That's a pretty benign example, but obviously right across the board when you move into the public realm for the purpose of political dissent people sometimes cover their mouths, they tape their mouths, they do all sorts of things as a form of expression that is constitutionally protected by the charter. Section 2 of the charter protects our fundamental freedoms, including the fundamental right to freedom of expression, to peaceful assembly. I worry that an overly broad provision could have a chilling effect and dissuade people who were engaged in legitimate public protests and who have no desire to engage in acts of violence from employing all the tools in the rhetorical arsenal by, for example, donning costumes and the like for the purposes of making their expressive point.

I do worry about the language being a little bit too fluid, a little bit too ambiguous in the proposed provision. If you go back to subsection 351(2), which is already in the code, as I mentioned, there is none of that concern. It's only in cases where someone dons a disguise with the intention of committing an indictable offence that the conduct is criminalized. There is no such safeguard here. I note that it does make reference to “without lawful excuse”, but it doesn't define what a lawful excuse is. It would be open to interpretation on the ground. Again, police officers aren't lawyers. The line between a legitimate protest and conduct that violates this prohibition might be left unclear to law enforcement on the ground. That kind of uncertainty could lead to unjustified arrest. It could have an unfortunate chilling effect on legitimate protest.

For all of these reasons, I think that this proposed amendment, although well-intended, is unnecessary and ill-advised.

That's all I have to say by way of introductory comments. I'd be most happy to answer any questions you have.

[The Chair, Conservative, Dave MacKenzie]

I call the meeting to order. The clock says 11, but it's never been properly set and apparently it's three minutes fast.

This is meeting 35 of the Standing Committee on Justice and Human Rights, pursuant to the order of reference of Wednesday, February 15, 2012, Bill C-309, an act to amend the Criminal Code.

Today we have two witnesses, one appearing by video conference. The other witness, Mr. Patrick Webb, is here with us. I think the witnesses have heard from the clerk that we accord them five to seven minutes for an opening address.

Mr. Stribopoulos, if you would care to begin, please go ahead. I'll let you know when you're down to one minute left in your time.

Justice

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, Canada's justice system should always put the rights of law-abiding Canadians ahead of those of criminals. Canadians are increasingly concerned about the violent and reckless behaviour displayed by those who participate in public riots.

Those who vandalize the homes and businesses of hard-working Canadians should not be able to hide their identity while doing so. That is the reason that I brought forward my bill C-309, the concealment of identity act.

Would the Minister of Justice please update this House on the government's position on my legislation?

[Prof. Michael Byers, Professor and Canada Research Chair, Department of Political Science, University of British Columbia, As an Individual]

Thank you very much. It's good to be with you today, particularly in the presence of my former professor of constitutional law, Irwin Cotler, who taught me 25 years ago.

Just for the record, I am a board member of the BC Civil Liberties Association, but that's not why I'm here today. I'm here because I was a member of the 2010 Olympics civil liberties advisory committee, which was an ad hoc group of retired judges, police officers, lawyers, and academics who worked directly with the City of Vancouver, with the RCMP-led integrated security unit, and with a number of protest groups in the lead-up to the Vancouver Winter Olympics.

The proposed legislation that you're considering today, Bill C-309, would obviously make two simple changes to the Criminal Code: amending section 35 to make it a criminal offence to wear a mask during a riot, and secondly, amending section 66 to also make it a criminal offence to wear a mask or other disguise when participating in an unlawful assembly.

During the Vancouver Olympics, I was proud to live in a country in which the expression of all political views is respected and protected, and during the riots that followed the Vancouver Canucks game seven Stanley Cup loss, I felt nothing but contempt for the criminals who were rampaging through our streets.

Those two sentiments are entirely consistent. In a democracy, there's a crucially important distinction between a protest and a riot. Almost all of the people involved in the Vancouver Olympics protests were there to express political concerns.

On riots, let me simply say—and others have said this before me—that the proposed amendment to section 35 seems redundant, since the Criminal Code already makes it an offence to wear a mask with the intent to commit an indictable offence. And obviously, participating in a riot is already an indictable offence. For this reason, my comments are directed solely at the second of the two proposed amendments, namely the creation of a new offence, punishable by up to five years in prison, for wearing a mask or disguise during an unlawful assembly.

Unfortunately, it is relatively easy for a peaceful protester to unintentionally find himself or herself involved in an unlawful assembly. The definition of an unlawful assembly in paragraph 63(1)(b) of the Criminal Code says that it is an assembly that causes

persons in the neighbourhood...to fear, on reasonable grounds that they

will by that assembly...provoke other persons to disturb the peace tumultuously.

This is hardly clear and definitive and is therefore open to subjective and controversial determinations by the police.

The matter is obviously complicated by the fact that some political protests include a small number of individuals who are intent on disturbing the peace tumultuously, and their ability to do so is sometimes facilitated by the presence of that much larger group of peaceful protesters. Clearly, some of that small number of individuals intent on disturbing the peace may wear masks or other disguises. But as Mr. Champ has pointed out, at the same time, some protesters who have absolutely no intent to disturb the peace tumultuously may also be wearing masks and be doing so for entirely legitimate reasons. This, I feel, is where the second part of Bill C-309 overreaches.

During the opening ceremonies for the Vancouver Olympics, I was observing a protest from a position roughly 10 metres away from the police line. I found myself standing beside a man who was wearing a balaclava. I seized the opportunity to engage him in conversation and gently suggested that he remove the mask. “You have nothing to fear”, I said. “You're not doing anything illegal.” He replied: “It's not the police who worry me. I work in an office where everyone is extremely supportive of the Olympics. If they see me here”— and at this point he pointed to the wall of TV cameras that were covering the protest—“I might lose my job.”

By that point the protest we were observing had probably become an unlawful assembly, meaning that the man I was speaking with, who had done nothing wrong, would fall within the scope of Bill C-309.

I should also say that the Vancouver Police Department handled that particular protest in a manner that casts valuable light on the proposed legislation before you. Entirely by design there was just a single row of VPD officers wearing baseball caps facing a crowd of 2,000 people. The police were friendly and smiling as they informed the protesters that their march could not continue into the stadium where the opening ceremonies were about to begin.

Almost all of the protesters accepted the limitation with grace, because the police had stopped traffic for them as they marched through downtown Vancouver and allowed them to come within 50 metres of the stadium and to chant and wave placards in clear sight and earshot of the ticket holders who were walking in.

A dozen masked people did try to pick a fight by spitting at the police and throwing traffic cones. The officers continued talking and smiling, the larger crowd remained calm, and the attempted riot fizzled out like a wet firework. The masked youths left in a sulk.

They came out the next morning without the presence of the larger surrounding crowd, broke a window at the HBC store, and were promptly arrested, to the satisfaction of not just the police but the thousands and thousands of peaceful protesters.

If the Vancouver Olympics can teach us anything, it's that the vast majority of protesters, if treated well, are the most valuable assets that security planners have. Well-intentioned protesters can exercise peer pressure on potential perpetrators of violence because they know that law-breaking can impede or distract from their message, if their message is in fact being allowed to get through.

Now, we shouldn't be surprised if—

[Paul Champ, Legal Counsel, BC Civil Liberties Association]

Thank you very much, Mr. Chair.

I'd like to thank the chair and the clerk and the committee members for inviting the BC Civil Liberties Association to appear and provide our comments and views on Bill C-309 and the proposed amendments to sections 65 and 66 of the Criminal Code.

The BCCLA would like to express its concern and opposition with Bill C-309 and its attempt to increase criminal sanctions for those who wear masks or face coverings at riots or unlawful assemblies. To be clear, the effort here is not to create a new offence; it's to create more significant penalties or sanctions for those who wear masks at unlawful assemblies or riots. So it's someone who's already committed some kind of crime.

I'd like to set out our concerns in four areas of civil liberties: one, freedom of expression; two, privacy; three, the presumption of innocence; and four, protection.

With respect to freedom of expression, whenever people organize and gather to express their views or opinions on a law or other public issues, whether it's a rally or a demonstration or protest, I think we all have to recognize that's a very good thing. When citizens and people organize, it's always a good thing. The exchange and expression and communication of ideas in a peaceful assembly reinforce the vitality and vibrancy of a democracy. The right to freedom of expression is described as a fundamental value in Canada, because, to quote the Supreme Court of Canada:

...in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.

The question is, how does Bill C-309 inhibit free expression? Simply put, it creates a chilling effect for those who may wish to wear masks at popular protests and rallies. Contrary to some opinions this committee may have heard, there are legitimate reasons for wearing masks that are tied to expressive activity.

First, masks can be a powerful aid to unpopular speech. For those who wish to convey messages that are likely to offend governments or others, the anonymity that masks provide may encourage the uninhibited expression of views by offering security against reprisal from government, employers, family, or others.

Here are just a few examples. How will people—who wish to—protest against the treatment of refugees by the Canadian Border Services or Canadian Security Intelligence? People who attend those kinds of rallies or protests may well be concerned that they are then going to come under the surveillance of CSIS. Or what if a person who was a refugee wanted to protest the atrocities against Tamils in Sri Lanka a couple of years ago? Some of you may recall those protests. There were many flags of the Tamil Tigers, which is recognized as a terrorist group in Canada. But if someone was a refugee attending that, would they be concerned or fearful that in some way they're going to be wrongfully targeted because they're attending such a rally?

What about the young, first-year Bay Street lawyer, perhaps not so enamoured with his or her job, who wants to attend the G-20 demonstrations in Toronto, or people who work for investment banks, like Goldman Sachs? There was a famous op-ed a couple of weeks ago of a person who quit Goldman Sachs because of their disagreement with that industry.

What about those who may choose to rally for or against same-sex marriage? Perhaps the son or daughter of a cabinet minister wished to attend the legalized marijuana rally at Parliament Hill a few weeks ago. Or perhaps an NDP MP wishes to attend the tuition rallies in Quebec. These might all be reasons why someone might not want their identity conveyed at a rally.

Secondly, in some circumstances the masks themselves may convey a message to observers. People wear politician masks, surgical masks, like doctors protesting for medicare, or Guantanamo Bay orange jump suits with sleep deprivation goggles. Guy Fawkes masks are now popular at Occupy protests, and so on. In short, the mask or the disguise is part of the message.

Assembly and freedom of expression are not simply something that democratic society should tolerate. It is something that should be encouraged and celebrated. This committee and Parliament should think about to what extent these new provisions inhibit that.

Secondly, it's privacy. The BCCLA has concerns about the use of facial recognition software and how it might be used for police or intelligence watch lists. There's been an expansion of no-fly lists. What does it take to become a target today? We don't know.

What about university students attending a protest today about something very unpopular, or maybe even the Occupy movement? That person may end up with an intelligence file for the rest of their lives because they attended a certain kind of protest in their youth.

The presumption of innocence is the third area of civil liberties that we're concerned about. Intention or state of mind is a critical element in the criminal law, and the BC Civil Liberties Association and other civil liberty organizations have long been concerned about the unlawful assembly and riot provisions in the Criminal Code because it is often very unclear when a lawful assembly becomes an unlawful assembly.

If you're someone who is at the front of a protest, wearing a mask, how do you know that there's not a small group in the back that do start engaging in criminal activity, thus rendering that entire assembly unlawful? You have, then, apparently, under the Criminal Code, immediately committed a crime. Now, with these new provisions, it's a crime where you could be subject to five years in prison. That's a concern.

Fourth, and finally, protection is the last point I want to make. I was here earlier and heard the comments by Inspector Rai from the Vancouver Police Department. I have to say that some of the things he said are a little bit disconcerting. We are worried that these provisions will in some way encourage police officers to engage in what he called preventative activity.

There's no question that the crimes that were committed at the Stanley Cup riots are completely unacceptable, and those who committed those crimes should be prosecuted. But the concern is when police, at demonstrations and rallies, get their own ideas about who may or may not be someone who is acceptable or about what kind of rally or protest is or is not acceptable. This idea of pre-awareness, or an agenda, or surgically removing people—these ideas are problems.

The other point Inspector Rai was making is that it can be used for de-escalation. That's not the experience of the BC Civil Liberties Association.

I will make this one last point. We obviously know about the terrible consequences of the Stanley Cup riots in Vancouver in 2010, but we often forget the numerous, very well-attended rallies and protests during the 2010 Olympics. These protests were largely peaceful. There were thousands and tens of thousands at some of those rallies.

One factor, we believe, as to why they were peaceful is that the BC Civil Liberties Association had organized an illegal observer program. Four hundred people with notepads were trained to attend these rallies in special, bright T-shirts, identifying who they were. That ended up creating very much a deterrent effect. There was not violence, there was not escalation, because we will say, from our experience, from activists who attend these kinds of rallies, that it's often the police who can cause the escalation of violence at rallies.

Those are the concerns we have.

I'd just conclude and emphasize to the committee that Bill C-309 does infringe or inhibit some of our most fundamental freedoms. It is disproportionate and unnecessary to address the concerns raised. Someone committing a crime can and should be prosecuted, and this bill will not change that in any way. What it will do is cause a chilling effect on free speech, and several other problems that I've raised with you today.

I thank you very much.

[The Chair, Conservative, Dave MacKenzie]

We'll call this meeting to order.

This is meeting 34 of the Standing Committee on Justice and Human Rights. Pursuant to an order of reference of Wednesday, February 15, 2012, we are dealing with Bill C-309, An Act to amend the Criminal Code (concealment of identity).

To our two witnesses, I apologize. We got caught up in a vote in the House, and since our meetings are two hours in length, we've lost half an hour. With the agreement of both sides, we've agreed that each panel will be 45 minutes in length instead of an hour. That way it will work out.

We have Mr. Tony Hunt with us, and by video conference we have Inspector Steve Rai.

I think you've probably had some indication of the time limit for your opening address. We'd like to keep it down to five or seven minutes maximum. I'll let you know if you're going to run out of time.

Mr. Hunt, if you would like to start, go ahead, please.

[Chief Jamie Graham]

I'm very pleased to be given this opportunity to share my perspective on Bill C-309. In short, I think this is a progressive, measured, and responsible step towards giving the police agencies the legislative tools we need to uphold the law and maintain public safety.

Having served in the RCMP, as chief constable of the Vancouver Police, and now as chief of the Victoria Police Department, I have personally experienced situations, during my 43-year career, in which this legislation would have been helpful.

Civil disturbances happen from time to time, and I'm sure they will continue to occur. But what is most concerning is when these disturbances become something worse, something more nefarious. Often the disturbance deteriorates into a violent riot because of the actions of a very few people. Indeed, over the past few decades a common pattern has emerged relating to how and why riots occur.

Typically, at a certain point people within protests or assemblies don masks and other facial coverings and begin vandalizing property, hurling objects, and sometimes assaulting police officers and bystanders. Property damage is often significant, and more importantly, people can be hurt or killed. Police agencies are deployed to restore order, but the identification of those committing criminal acts is always a challenge. This is doubly difficult when they wear masks to conceal their identities.

This strategy has been adopted on a global basis among like-minded protesters, who use the same tactics of concealing their identity, committing unlawful acts, and then shedding masks and facial coverings to blend in with the larger group of lawful citizens. In my experience, these ringleaders disguise themselves so that they can conduct their illegal activities in anonymity and with impunity. This legislation would change that in Canada.

It's important to remember that we would not be alone in taking steps to counter these rioting tactics. Many other jurisdictions have implemented legislation that prohibits or limits the use of facial disguises during protests.

New York State recently had its legislation upheld by the courts, which held that the 1965 anti-mask law furthers the important governmental interest of deterring violence and facilitating the apprehension of wrongdoers who seek to hide their identity.

Similarly, the United Kingdom and France passed legislation in 2001 and 2009 respectively to address similar concerns.

I also think it's important to address some of the criticism that exists on this subject. This falls under two broad topics. The first is the criticism that there's already legislation in effect that makes “disguising with intent” an offence under the Criminal Code. The challenge with this offence is that it demands an almost unattainable standard for effective, proactive policing—it requires the crown to prove the intention to commit one or more specific indictable offences. Although that would allow for the arrest of a masked person who participates in a riot once it has started, it does very little to prevent the riot from occurring in the first place.

In contrast, Bill C-309, by creating a specific offence for wearing a mask while taking part in a riot or unlawful assembly, could allow for a pre-emptive arrest under the “about to commit” sections of the Criminal Code when an agitator “masks up”, as we call it. This would help provide proactive arrest authority to remove these instigators before things get out of control.

The second criticism I've been hearing is that there are concerns regarding the wearing of facial coverings for religious or cultural reasons. I firmly believe that this important factor is adequately addressed in the bill itself. It specifically exempts persons with a lawful excuse for having their faces covered, which would clearly apply to the wearing of religious coverings.

I hope my comments today adequately explain my support of this proposed legislation. I do so unequivocally. I firmly believe that this law would have a tremendous deterrent effect on those considering violence as part of an assembly. I also believe it would better enable the police to prevent riots before they occur, which is the desired outcome for police agencies, business owners, governments, and most importantly, the public that we all serve.

Thank you.

[Charles Gauthier]

Okay. Thank you.

Good afternoon. Thank you for this opportunity to address you. As the speaker said, my name is Charles Gauthier. I'm the executive director of the Downtown Vancouver Business Improvement Association, a role I've had for 20 years.

The DVBIA was established in 1990 and represents more than 8,000 businesses within a ninety-block area of downtown Vancouver's peninsula. Some 145,000 employees work downtown, and more than 80,000 people live downtown.

I'm presenting today in my capacity as executive director of the association, in support of private member's Bill C-309, An Act to amend the Criminal Code (concealment of identity).

The DVBIA board of directors voted unanimously at its January 24, 2012, meeting in support of the bill, because it will provide law enforcement officials with an additional tool to arrest individuals who wear a mask or disguise with the intent of committing unlawful acts and seeking to avoid identification. We believe this amendment to the Criminal Code will also serve as a deterrent to would-be rioters.

Vancouver has a rich history of peaceful protests, but it also has a dark side: riots that have cost millions of dollars in property damage and traumatized employees, residence, and business owners.

During my tenure at the DVBIA I have witnessed two riots and a peaceful march that turned into a brief but expensive spree of vandalism and property damage. I do not have a full and complete memory of the June 14, 1994, riot that took place after the Vancouver Canucks lost to the New York Rangers in game seven of the Stanley Cup finals. What I do remember, however, is the pain and suffering our members and their employees endured for months afterwards.

Fast forward to the 2010 Winter Olympics, hosted by Vancouver and Whistler. As most of you will likely recall, there was a peaceful protest of thousands of people leading up to the opening ceremonies at B.C. Place Stadium. However, amongst the peaceful protesters was a group of individuals known as Black Bloc, who conceal their identities by dressing in black clothing head to toe. They infiltrate peaceful protests and use the crowd as a shield. Given the right opportunity, with their identity concealed they engage in unlawful acts such as assaulting individuals, committing acts of vandalism, and damaging public and private property. To avoid arrest they scurry like cowards into dark corners, shed their disguise, and then blend in with lawful citizens again.

On this first day of the Winter Olympics, Black Bloc was unable to leave its mark. This was likely due to the size of the crowd and the strong police presence. But on the following day, during a much smaller peaceful demonstration with less police presence, Black Bloc members went on a short but expensive spree of smashing in windows and spray-painting facades of banks, retail outlets, and office buildings, while also terrorizing employees and passersby. Video images of the unlawful acts were captured, including images of the cowards shedding their disguises in laneways.

This was the turning point for the balance of the Winter Games. Public sentiment turned against all types of protest, peaceful or otherwise. There were a few peaceful protests, but they were very small in comparison with those of the opening day ceremonies. Unfortunately, peaceful protesters were taunted and chastised by passersby. Thankfully what people remember most about the games is the friendly crowds that met and celebrated our athletes' victories in the streets of downtown Vancouver.

With the success of the 2010 Winter Games and a renewed confidence that we could celebrate responsibly in public spaces, the city of Vancouver welcomed thousands of people downtown during the Vancouver Canucks 2011 Stanley Cup run to watch the games on a number of large screens in the public realm. West Georgia Street, a major downtown artery, was closed to vehicular traffic to host upwards of 50,000 people each and every night during the playoffs.

As you know, just as game seven of the Stanley Cup finals was coming to an end, a riot started. I was at home watching the game. I thought about heading downtown when news about the riot was announced, but I was advised by many not to. During the course of the evening I watched the event unfold on television. I also responded to calls from the media and City of Vancouver staff, who were on the scene to board up businesses after the police had regained control of the situation after three hours.

The next day I surveyed the damage with my staff, board members, and elected officials. I met with our members who were impacted by the riot. The carnage was extensive. Sixty businesses in the DVBIA area had some type of property damage. Twenty of these businesses had been looted. Estimates of the damages have been reported in the $3 million to $4 million range. The Vancouver Police Department has labelled the night of the riot as the largest crime spree in Vancouver's history, with over 15,000 criminal acts identified.

Employees who were working that night were traumatized by the rampage. Here are some examples of what happened that night.

Department store employees fought off crazed looters by deploying fire extinguishers. The owner of a coffee shop and her employees sought refuge in the restroom while the interior of the business was being destroyed. Employees of another retailer feared that their building was on fire and panic set in. In fact, vehicles parked immediately outside the building were on fire and the smoke entered the building. Employees of another business were prepared to fend off the looters with baseball bats if they breached the doors. Thankfully, the would-be looters left.

Almost 11 months later, and with only one riot conviction, our members are disillusioned and skeptical about the effectiveness of our criminal justice system. There is evidence that on that night there was a core group of instigators who came prepared to incite a riot. They had weapons, incendiaries, and masks and disguises to conceal their identities. The Vancouver Police Department estimates there were hundreds of people masked in various stages or types of masking. It took weeks of computer time to get the exact numbers.

The investigation has cost the Vancouver Police Department hundreds of thousands of dollars to process the video to try to associate the pictures of masked persons to the video of them earlier in the evening without masks. An investigation of a masked offender takes the police hundreds of hours to, in effect, get the mask off.

One retail establishment hit particularly hard by the riot has video showing masked looters coming through its front doors in waves. It is unlikely that the rioters and looters who wore masks or disguises will ever be caught. As a result, they will continue to engage in criminal acts of this nature until our laws change.

As our country's lawmakers you can begin the process of rebuilding the public's confidence in our laws by supporting private member's bill C-309 and giving notice to would-be looters, rioters, and criminals that donning a mask, disguise, or other facial covering will be met with the full force of the law. Any and all efforts to further strengthen the laws of our country to mitigate any unlawful public gatherings and demonstrations are welcomed by our association and our members. Our collective wish is that citizens across our country can gather, protest, and celebrate responsibly and lawfully in our public spaces without fear of riots or other unlawful acts occurring.

Thank you.

[Blake Richards, Conservative, Wild Rose, AB]

All right, Mr. Chair, and I know you'll hold me to that.

Thank you.

It is a bit of a unique position to be at this end of the table. It's the first time I've had this opportunity, so thank you very much. It's a pleasure to be here today to speak to you all about my private member's bill, Bill C-309. I'd like to spend a little time outlining some of its provisions and some of the outcomes I hope it will achieve.

Over the past few years cities across Canada, from Toronto, to Vancouver, to London, to Montreal, have all fallen victim to violent riots. These events often begin as peaceful demonstrations of one type or the other, and end up being escalated by masked criminals who are hiding in plain sight. The intent of my bill is, first, to be able to prevent these occurrences from happening. Secondly, the bill will help police officers ensure public safety by providing them with tools to prevent, de-escalate, and control riots and unlawful assemblies when they happen. It will also ensure that those who engage in violence and vandalism during such events are more easily identified, charged, and brought to justice.

My bill will achieve all of this by making it a new Criminal Code offence to wear a mask, or to otherwise conceal one's identity when police are working to control an unlawful assembly or riot. Measures that strip criminals of the ability to hide in plain sight in the midst of public disturbances will provide a strong deterrent to engaging in other criminal acts. It will also allow police to intervene and arrest those who wear masks in defiance of the law, defusing tense situations, and ensuring that private citizens and public and private property are protected.

The need for this legislation cannot be overstated. In the G-8 and G-20 demonstrations about two years ago, a breakaway group of violent protestors caused $2.5 million in damage to Toronto businesses and destroyed four police cruisers. Overall, 97 police officers and 39 citizens were injured. In all this chaos only 48 offenders were charged with criminal offences. The riots last year in Vancouver were even worse. Rioters caused at least $3 million in damages to 89 businesses and the City of Vancouver, including the destruction of almost 40 police vehicles.

The investigation that followed, hampered by the difficulty of identifying masked suspects, has cost Vancouver police an estimated $2 million over and above their normal operating costs. Despite the great work of the Vancouver Police Department in identifying 15,000 separate criminal acts, only 85 people have been charged. Despite a heavy media presence, access to closed-circuit television cameras, and a proliferation of mobile devices, many criminals have been able to escape justice for their misdeeds.

Those two instances stand in sharp contrast to the riot at Fanshawe College in London, Ontario, in March of this year. This event involved about 1,000 people and caused an estimated $100,000 in damages. I recently spoke to London Police Chief Brad Duncan, who confirmed that rioters there did not actually conceal their identities. As a result, in just over a month London police have already identified and charged 42 individuals with 103 offences.

It's clear that the measures proposed in my bill are sorely needed. I've met with police officers and police chiefs across the country in Vancouver, Victoria, Calgary, Toronto, and elsewhere, and all of them support this bill. They believe that not only will it help police investigate the aftermath of riots, it will also prevent disturbances from becoming so dangerous in the first place.

To quote Victoria Police Chief Jamie Graham, who is here with us today:

I welcome any legislation that reduces the potential for violence at public gatherings.... This bill is a meaningful step towards preventing those with violent intent from hiding behind disguises, masks and facial coverings.

Recently we have seen lawful student demonstrations in Montreal turn violent by a small criminal minority who conceal themselves to avoid detection. Police and journalists have been assaulted, stores and other private property have been vandalized, and over 85 people have already been arrested.

Lieutenant Ian Lafrenière of the Montreal police has said to the media that some protestors were using Black Bloc tactics by masking their faces, coordinating as a group, and using weapons they had hidden along the protest route. In fact, Montreal's Mayor Gérald Tremblay directed the city's commission of public safety to examine the issue. They're expected to recommend a law banning the wearing of masks during violent demonstrations.

However, it's not just the police and civil authorities of our major cities who are asking for these measures. As you will hear from many knowledgeable witnesses over the next week or so, the aftermath of a riot can have devastating consequences to the local economy.

You'll be hearing from business leaders in our cities who have been victimized by the actions of rioters and who believe that Bill C-309 is a needed piece of legislation to help prevent them from being victimized again in the future.

The Downtown Vancouver Business Improvement Association is comprised of member businesses that were hardest hit by the riot in that city, and their members are supporters of my bill.

I will quote their resolution. It reads:

June 15, 2011 is a dark moment in our city's history that traumatized thousands of residents, employees and hard-working business people. The property damage incurred that evening combined with the looting that took place is in the millions of dollars. Vancouver's picture postcard image was sullied by the actions of reckless and irresponsible individuals who have no respect for the laws of our country.

The Building Owners and Managers Association of British Columbia, at their recent board of directors meeting, also endorsed Bill C-309. The Building Owners and Managers Association of B.C. represents over 400 corporate members that own or manage commercial real estate in the province of British Columbia, many of whom suffered loss in the Vancouver riot. In their letter to me advising of their unanimously supported resolution, they say, and I quote:

Downtown Vancouver building owners and business tenants were seriously affected by the June 2011 post hockey riots. We believe this proposed amendment will be a valuable enforcement tool going forward to mitigate damage from any future unlawful acts of violence during riot situations.

I'm aware that some of my colleagues in the opposition have opposed this bill because they believe it would impair a citizen's right to protest. But let me be clear, these measures do no such thing. When a protest or any other public gathering, for that matter, evolves into an unlawful assembly or a riot, it is by definition no longer a charter-protected assembly. It has become a Criminal Code offence to which individuals are subject to sanctions if they choose to participate in it.

In fact, I believe that Bill C-309 actually helps to maintain the rights of all citizens to peaceful protest by providing a way to deter or to deal with those who would use the cover of a peaceful assembly to engage in criminal acts.

Bill C-309 is a measure that police and law-abiding citizens and businesses have been asking for. It would defend Canadians and their livelihoods from senseless violence while helping maintain the right of all citizens to peaceful protest, which is consistent with our government's commitment to Canadians to protect law-abiding citizens and to keep our communities safe from criminals.

I'm also aware that some of my colleagues have suggested that we should look at harmonizing the penalties in my bill with those that are already existing in the Criminal Code for wearing disguises, under section 351, and I would welcome amendments from the committee to address that concern.

I'd like to close my remarks by urging my colleagues in the opposition parties, who have expressed reservations about the bill, especially those who represent ridings in Montreal, Vancouver, and Toronto where we've seen these incidents, to listen very closely to what their constituents are saying. The support I have received from citizens of those cities is inspiring.

I also want to sincerely thank the members on both sides who have already voted in support of Bill C-309 at second reading.

The true test of their resolve to take a stand against criminals who would assault citizens, vandalize neighbourhoods, and destroy private and public property in their cities will be realized in their vote at final reading. I therefore urge all of you to use your questions to the witnesses to learn about Bill C-309 and how it can be an effective tool to prevent such terrible events in the future.

Thank you, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

Seeing the clock says 11 o'clock, we'll begin this meeting of the Standing Committee on Justice and Human Rights. This is meeting number 33, pursuant to the order of reference of Wednesday, February 15, 2012, Bill C-309, An Act to amend the Criminal Code (concealment of identity).

For the first hour we've scheduled Mr. Blake Richards, the member of Parliament from Wild Rose, who is the sponsor of the bill.

Mr. Richards, as standard practice we'll give you 10 minutes for an opening address. I'll let you know at nine minutes that you have one minute left.

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

[Blake Richards, Conservative, Wild Rose, AB]

Mr. Speaker, for the last several nights fires have been burning in the streets of Montreal. Police officers and journalists have been assaulted, stores and other private property were vandalized, and over 85 people have been arrested in riots that started on Tuesday.

My private member's bill, Bill C-309, would protect Canadians from these crimes and would allow police to arrest masked troublemakers before these unlawful assemblies became full-fledged riots. It would defend Canadians and their livelihoods from senseless violence while helping maintain the right of all citizens to peaceful protest.

The NDP has refused to support this sorely needed measure. In light of the Montreal riots, will the NDP reconsider its dangerous position and help protect the businesses and citizens of Montreal, Quebec, and all of Canada?

In light of the riots in Montreal, will the NDP review its dangerous position and help protect the businesses and residents of Montreal, Quebec City and all of Canada?

[The Speaker, Conservative, Andrew Scheer]

The House will now proceed to the deferred recorded division on the motion at second reading stage of Bill C-309.

The House resumed from February 8 consideration of the motion that Bill C-309, An Act to amend the Criminal Code (concealment of identity), be read the second time and referred to a committee.

[Blake Richards, Conservative, Wild Rose, AB]

Madam Speaker, we have had some excellent debate on my private member's Bill C-309, the preventing persons from concealing their identity during riots or unlawful assemblies act.

Bill C-309 would improve public safety. There is a great risk of injury to anyone involved in, or in the proximity of, an unlawful gathering or a riot.

Those risks are only compounded when people intent on causing trouble wear masks and conceal their identity. Police say the main reasons masks are worn in a riot are for the purpose of committing crimes or intimidation. Wearing disguises in such chaotic situations emboldens offenders by giving them the anonymity to commit crimes without fear of consequences. They know that they are not likely to face prosecution if they cannot be identified.

I do not think any member in the House would deny that it is in the public interest to stop riotous behaviour as quickly as possible. Therefore, Bill C-309 aims to strip away the anonymity that criminals depend on by making the wearing of a mask without lawful excuse a new offence. The ability to remove people who don a mask to deliberately cause trouble would be a new tool for police to prevent these individuals from instigating or committing criminal acts.

As we bring second reading debate to a close, I would like to encourage all members to support the bill. To those who are still undecided, I would like to speak now from the perspective of the many police officers, business owners and individual citizens who have expressed their support for this legislation. Police chiefs in Calgary, Toronto, Vancouver and Victoria all support its aims.

Recently, Toronto police officers took me on a tour of the streets that were hardest hit during a riot there. It was an eye-opener to see first-hand the route that the rioters took and to have police explain their efforts to try to control such a volatile situation.

A group of masked individuals, who police say showed up with the intent to cause trouble, inflicted massive damage on private businesses and torched four police cars along the way. According to best estimates by police, businesses endured $2.5 million worth of damage.

I certainly hope that the NDP member for Trinity—Spadina and the Liberal member for Toronto Centre, who represent the area of Toronto that was most affected, are paying very close attention. I hope that those members' votes on the bill will reflect a determination to stop that kind of mayhem from happening again against their constituents and business owners.

Business owners and operators are virtually sitting ducks when riots occur. Storefronts seem to bear the brunt of the destruction. It does not matter how large or small the operation, these are all businesses that have made investments in our local economies. They employ our citizens. They pay taxes to all levels of government. They improve our quality of life by providing services for consumers. They do not deserve to be sitting ducks for violent masked thugs.

Measures to deter riots from escalating are the best safeguards against the destructive results of a riot. Business owners who have suffered loss certainly know this.

The Downtown Vancouver Business Improvement Association is composed of member businesses that were hardest hit by the riot in that city. It has unanimously endorsed this legislation. I would like to read its letter of support. I certainly hope the Liberal member for Vancouver Centre, who is supposed to represent the interests of those business owners, will take note and consider the concerns of her constituents when she votes on this bill. To quote the DVBIA:

June 15, 2011 is a dark moment in our city's history that traumatized thousands of residents, employees and hard-working business people.

The property damage incurred that evening combined with the looting that took place is in the millions of dollars. Vancouver's picture postcard image was sullied by the actions of reckless and irresponsible individuals who have no respect for the laws of our country.

Any and all efforts to further strengthen the laws to mitigate any unlawful public gatherings... are welcomed by our members.

The last word goes to Brian Rogers, a resident of Baie-d'Urfé, Quebec, who is a constituent of the Liberal member for Lac-Saint-Louis. He wrote:

Congratulations on introducing your bill which would make it illegal to wear a mask during a riot or civil insurrection. Its moral intention is entirely in line with Canada's heritage of the common law...

I urge all members to join me in improving public safety by taking away criminals' ability to hide in plain sight during a riot.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Madam Speaker, I am proud to speak in favour of Bill C-309, introduced by the member for Wild Rose.

I will approach this from a different realm, that being my experience as a police officer. I will speak to a specific event that occurred on July 28, 1991, which was a defining moment for Penticton, British Columbia. It pertains to a riot which I investigated. I can speak to this bill with some knowledge regarding riots and unlawful assemblies.

On July 28, 1991, at 41 minutes after midnight, the mayor of Penticton made a proclamation under section 67 of the Criminal Code with regard to an unlawful assembly and riot situation. The police waited 30 minutes before taking action, as required under the Criminal Code. At one o'clock in the morning, the police took action on approximately 5,000 to 10,000 people who had congregated in the downtown area of Penticton, which is commonly referred to as Main Street and Lakeshore Drive. My colleague from Okanagan—Coquihalla will remember it well. It was a night like no other.

When police officers are involved in a riot, their hearts are pumping and they are thinking at a million miles an hour as to what they can do to try and quell the situation and minimize the damage that will occur or has occurred. As a result of that, they are trying to be as proactive as possible.

As opposed to the member who spoke before me, I see this as a proactive bill. I will explain why.

In 1991 we did not have the electronics we have today; we had videotape and TV cameras. We had one sole purpose: we had to be able to identify people. Under sections 67 and 68 of the Criminal Code, one must be identified to be convicted in a court of law. Back in 1991, those who were masked, and there were many, had to be ignored because we could not identify them. As a result, there was a lot of damage that had been done on Main Street and a couple of other streets down in the lower part of Penticton that we could do nothing about by people who had concealed their faces.

Members must understand that the police officers were put under a lot of constraints at that time. There were not a lot of us. There were only 38 officers to deal with about 5,000 people. We did what we could do. The main thing we wanted to do that night was disperse the crowd, but we could have done a lot more had this law been in place. We could have started apprehending people immediately, thus hopefully stopping other crimes from occurring, such as wilful damage, break and enter, and theft.

This bill which the member for Wild Rose has brought forward is proactive. I will explain why.

During a riot, normally people conceal their identity for three reasons. The first and most important is they want to conceal their identity so that the police cannot identify them. The second is that under most circumstances during a riot tear gas is lobbed and one can be protected from it by wearing a mask. The third is that it empowers people to do something they may not normally do if they could be identified by the police. I believe that is what the bill is all about, taking the empowerment away from those who believe they have carte blanche during a riot or unlawful assembly.

The intent of Bill C-309 is to do just that, to take away the empowerment. I do not believe this is trying to throw people in jail for the sake of throwing them in jail.

I understand that after 30 minutes of the proclamation being read under section 68 of the Criminal Code, anyone who does not disperse can be arrested. It is at the discretion of the police officer whether or not that person should be arrested.

As the member who spoke before me has said, for those who are trying to flee, in all likelihood, if the police are coming toward those people and they run away, that is a good thing, because we would like them to get out of the area. We want to get the people who provoke the police, and they normally are the ones who have their faces concealed.

The addition of a charge under these circumstances is quite relevant. The relevancy is that those who cover their faces with a disguise or a mask are the ones who are provoking the riot to continue.

It is very difficult for the police to stop something when they do not have the power to stop it.

Bill C-309, brought forward by the member for Wild Rose, is an exceptional bill. It would help police immensely. It would not be used during peaceful demonstrations. It would not be used to discourage people from providing their opinion during a peaceful demonstration, but should the Riot Act be read, the game would change, and all of a sudden it would not be a peaceful situation.

The bill would allow police to arrest those who conceal their identity. It would stop crime from happening before it happened. It would dissuade people from continuing an act of empowerment and egging on the police. It may stop a riot a couple of hours earlier. That is what it is all about. It is about trying to sway people to be peaceful, as opposed to being in a riotous state.

As a police officer who has been involved in a riot, I know it is not fun. It is very dangerous for everyone involved because everyone is pumped up and wants to do something.

That night in Penticton, there was over half a million dollars damage done in under two hours. I do not know how much damage was done at the G20 summit, but I do know that we could have prevented at least some of it had the bill been in place.

This would help police officers move forward so they can immediately arrest someone who is wearing a mask and then identify the person. The sole reason for the bill is to identify those people who have masked themselves.

Again, I appreciate the bill being brought forward by the member for Wild Rose. It would be a great opportunity for the police to use it when they need to. It would not be abused. I believe the bill would dissuade people in the future from entering into riotous situations and/or unlawful assemblies.

I do not have much more to say. I wanted to speak to my experience. I believe that this bill would be a great move forward for the police community.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

It is unfortunate the hon. members cannot behave in an honourable way and allow a person to speak without heckling, as we did them. It just shows what they are.

Lawful assembly is something that is held sacred in the Charter of Rights and Freedoms. When an assembly turns unlawful and people are wearing a mask, are they then going to be held liable, through this bill, for being part of this assembly even though they may not be committing a criminal act? How does one prove intent? How does one show intent as people are running through the streets trying to get away from a riotous situation? If they happen to be wearing masks because it is cold in the winter in Canada, would they be held liable because they are wearing masks but are just trying to get out of a dangerous situation?

It is unfortunate that the government feels that it needs to tackle a situation with a bazooka in order to feel better about itself, but I guess that is what it needs to do. However, we on this side question the actual need, as well as the intent of a bill such as Bill C-309.

Lawful assembly is something that is part of our rights as Canadians and a bill like this may deter those rights. What I fear it would deter is people's safety and comfort in feeling that they can express their views in a public manner in safety.

It seems to me that people will become less and less inclined to speak out against the government and against wrongdoing. The civil rights movement was built on civil disobedience. When laws are unjust, one of the recourses citizens have is to take to the streets and speak their minds. My fear is that a bill like this would be more of a deterrent to that aspect of free speech, as opposed to protecting property and streets after the fact.

Why does the government feel the need to act only after the fact? Why is it that these bills have come forward? There have been three, as I said before. One bill would put people in jail for defacing monuments, as opposed to educating and rehabilitating individuals. Another bill would put people in jail for telling people they cannot fly the flag, rather than developing a program to make Canadians proud of the flag, proud of the work Canada does and proud of what Canada represents. Now we have a bill that would throw people in prison for wearing a mask. If an individual were to wear a mask while defacing a monument and telling somebody else not to fly the flag, does that mean the person would get 15 years in prison? Is it concurrent? Is it added on to? We do not know.

The government comes across to this side of the House and I am sure to the majority of Canadians as they see more of these bills, as a vindictive and punitive government, as a government that does not respect Canadians, that does not have faith or confidence in Canadians, that feels it has to legislate Canadians into obedience and the government's way of thinking. That is a sad indictment of the group of people that is supposed to be taking care of Canadians and looking after Canadian needs, not after the fact but before the fact.

This bill is so pointless that I do not really have that much more to say. I leave members with these questions: Why is it that the government needs to act after the fact? Why is it that the government feels it has to be punitive in order to get its point across? Why does the government not trust Canadians? Why does the government not believe that Canadians can learn through positive reinforcement rather than punitive, vindictive and sorely misguided options?

[Michelle Rempel, Conservative, Parliamentary Secretary to the Minister of the Environment]

Madam Speaker, I am pleased to speak in support of private member's Bill C-309 introduced in the House of Commons on October 3.

In my remarks today, I will explain why Bill C-309, An Act to amend the Criminal Code (concealment of identity), is consistent with our government's commitment to protect law-abiding citizens and keep our communities safe.

When my colleague from Wild Rose introduced the bill, he indicated two reasons for doing so. The first reason was to create two new offences to discourage the wearing of a mask to conceal identity during an unlawful assembly or riot. Second, my colleague indicated that these offences would facilitate the arrest of rioters at early stages of the commission of these offence.

Why is this important?

First, the results of the bill would be safer communities, which, again, is our government's commitment, and to protect those who lawfully assemble with peaceful intentions, as well as to protect the businesses and properties that are surrounded during protests or other activities.

The volatility and danger of riots has long been recognized at common law. This criminal behaviour is made more serious by wearing a mask for the express purpose of making it more difficult to identify the persons taking part in riots and unlawful assemblies.

As members know, it is quite easy to pull out a digital camera on a BlackBerry or an iPhone, which is why we have seen over the last year people wearing masks during riots. There is an express intent to conceal their identity during criminal behaviour. The bill has been introduced to deal with this issue, to deter people from escalating into the cause of rioting and to hold them accountable for such actions.

The Criminal Code already contains the offence of being a member of an unlawful assembly and taking part in a riot. However, this bill would add a new offence to each of these provisions to address wearing a mask or a disguise to conceal identity without lawful excuse during the commission of either of these offences. It would also provide new penalties to reflect the more serious nature of the new offences.

At the present time, taking part in a riot is an indictable offence with a maximum penalty of imprisonment of two years. The new offence in the bill for taking part in a riot while wearing a mask or other disguise to conceal the identity without lawful excuse would be an indictable offence with a maximum penalty of imprisonment for five years.

Similarly, the current offence for being a member of an unlawful assembly is a summary conviction offence, which is less serious than an indictable offence, with a maximum penalty of a $5,000 fine and/or a maximum term of imprisonment of six months. This difference in penalty reflects the fact that an unlawful assembly precedes a riot.

Bill C-309 would create a new offence of being a member of an unlawful assembly while wearing a mask or other disguise to conceal identity without lawful excuse. The new offence would be a dual procedure offence with a maximum penalty of $5,000 and six months' imprisonment if the prosecution elects to proceed by summary conviction and a maximum penalty of five years' imprisonment if the offence is proceeded with as an indictable offence.

It should be noted that Bill C-309 would fill a gap in the current law. At the present time, persons who wear masks or disguises with the intent to commit an indictable offence, including taking part of a riot, is subject to an offence under subsection 351(2) of the Criminal Code and is liable to a maximum term of imprisonment of 10 years.

However, subsection 351(2) does not apply to summary conviction offences. This means that the Criminal Code does not specifically address the situation of persons participating in an unlawful assembly who wear a mask or other disguise to conceal their identity without lawful excuse.

Essentially, what this means is that when someone participating in a riot knows that he or she will be captured on video on a cellphone and puts on that mask, we now have a way to hold him or her to account in a much clearer way than is currently outlined in common law.

To harmonize maximum penalties available for wearing a mask to disguise while taking part in a riot, and I believe my colleague opposite had discussed this earlier, this government will support an amendment to raise the maximum penalty for the new offence in the bill from 5 years to 10 years.

I want to assure members of this House that the new bill would not target people who wear masks or costumes that may conceal their identity while they are engaged in lawful protests, marches, gatherings or other activities commonly associated with the exercise of freedom and expression of lawful assembly. I will re-emphasize that this would not affect people who are protesting peacefully or are within the context of a law-abiding activity. This would affect people, when the riot act has been called, who don a mask to conceal their identity.

The rights to freedom of expression and lawful assembly are specifically and expressly recognized in the Canadian Charter of Rights and Freedoms. I will explain why this bill would not endanger any of these freedoms.

First, a person cannot be charged with either of the new offences in the bill unless he or she is already engaged in committing the criminal offence of being a member of an unlawful assembly or taking part in a riot. It is only during the commission of either of these offences that the new offence provisions may apply.

A second requirement is that the wearing of the mask or other disguise during the commission of the offence of being part of a riot or unlawful assembly must be done for a specific purpose. This level of intent is referred to as “specific intent” and it is a higher level of intent than general intent.

The prosecutor must prove beyond a reasonable doubt that the person was wearing the mask or other disguise for the purpose of concealing his or her identity while engaged in criminal activity. Implied in this is the concept that the person is concealing his or her identity for an unlawful purpose. Specifically, the person is concealing his or her identity to make it more difficult to be identified for the lawful purpose of law enforcement. As I will discuss in more detail in a moment, this is important because a person who wears a mask for a lawful purpose, such as safety reasons, does not have the specific intent to conceal his or her identity.

The reference to “without a lawful excuse” of each of the new offences in Bill C-309 confirms that the defence of lawful excuse applies to the new offences. This means that even if a person is wearing a mask or disguise to conceal his or her identity while committing the criminal offence of taking part in a riot or participating in an unlawful assembly, he or she would have a defence if the reason for concealing his or her identity is a lawful one. I will explain what I mean by this.

Although the situation may arise, in rare cases there may be circumstances where a person taking part in a riot is, for example, wearing a mask to conceal his or her identity to ensure that he or she is not recognized by someone at the riot who is a threat to his or her personal safety. I expect that in most cases it would be clear from the circumstances that the person is wearing a mask or disguise for the purpose of facilitating his or her anonymous participation in the riot.

As with all criminal offences, the prosecution would be required to prove the intent element of the offence beyond a reasonable doubt. However, the defence of lawful excuses are available to ensure that the new offences with higher penalties do not apply to people who wear masks for lawful purposes, even if they are a member of an unlawful assembly or take part in a riot.

I would like to stress that although these people may not be liable to be charged with one of the new offences in the bill, the current Criminal Code provisions still apply and, thus, these people remain accountable to Canadians for their criminal behaviour.

In closing, I believe this legislation is important because it fills a gap in the current law and clearly denounces the wearing of masks or other disguises to conceal identity without lawful excuse during an unlawful assembly or riot. By denouncing this behaviour that is the antithesis of lawful expression and assembly, the bill underscores the Canadian values of freedom, tolerance, respect and rule of law.

Therefore, for those who have been saying that this would hinder people who are participating in peaceful protest, I believe that it would the opposite. It would deter those who would come, escalate the situation into a riot and then try to conceal their identity so that they are not held accountable to law-abiding Canadian citizens.

At the end of the day, I think a lot of Canadians were shocked by the riotous activity that occurred in two Canadian cities over the last year. This bill is in response to that. As a government, we want to send a strong message to Canadians that we are committed to safe streets and safe communities, and to ensuring that businesses are protected and that the activity of peaceful protest can go on as part of Canadians' rights and freedoms.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is with pleasure that I rise to speak to Bill C-309.

I know issues related to justice and to making our communities a better place to live concern all members of Parliament as we try to make a difference in improving the quality for the citizens we represent. I look at Bill C-309 as a genuine attempt at making a difference in certain situations.

I am sure we can all reflect on some of the riots that have occurred in the past in Canada and abroad. Valid arguments have been made that we need to do more to protect our citizens, police agencies, law enforcement officers and individuals who are called in to riot situations. I think of individuals such as first responders, paramedics, ambulance attendants and fire personnel. These individuals put their life on the line in many situations in which the average individual is not obligated to participate.

We want to be sensitive and do the right thing to protect those individuals and, as I mentioned, the many different police agencies in situations that come before us for a wide variety of reasons. I could cite the old G20 and G8 conferences that were conducted.

Television networks across Canada televised some of the rioting that took place as a result of the G8 and G20. What Canadians saw on TV or in the pictures that were published left a lasting impression in their minds. One needs to be very sensitive to what our population as a whole thinks and how those people want politicians to respond to what they see.

A vast majority of protestors see a situation or a government and the many flaws that a government might have or want to propose throughout the years. In this case, governments from across the world came to Canada. We have to go the extra mile to ensure all residents of Canada have the right to express themselves, to show up and protest the issues that are important to them.

A vast majority of protestors are good, law-abiding citizens who want to express how they feel about important issues. Unfortunately, at times, that could lead to situations which become dangerous. What might start off as a peaceful demonstration will quite often have people come in to aggravate things. In essence, they are there to try to agitate and cause violent reactions.

It is important for us to recognize the validity of protests and the freedoms of individuals to participate in that process.

On the other hand, we have other types of situations that come before. We can look to Vancouver at the celebrations that followed the Stanley Cup, where citizens came to the street. Once again, a vast majority of those who participated came out because of that high sense of civic pride. They felt good about the Stanley Cup and the fact that Vancouver had made it into the playoffs. They wanted to share that experience and those emotions in a large gathering.

Much like protests that take place in Toronto, unfortunately, individuals will get themselves into these large crowds to aggravate, to try to cause problems for the community as a whole. It raises the issue of safety. All of us, I suspect, would argue that instigators are the ones on which we need to focus some attention. It is reasonable for us to try to come up with ways that will make a difference.

I see this private member's bill before us as a bill in which the member has given a personal assessment of how he feels on the issue. In reading his comments, I understand that he has done some consultation. However, more important, his comments indicate that he would be open to the process of committee and the possibility of making changes to the proposed legislation. I am encouraged by that in the sense that we have to go the extra mile to ensure we are not, in any fashion whatsoever and in no way, telling residents, citizens, landed immigrants and the like that they do not have the right to assemble. In the vast majority of cases, 99% plus, we should encourage people to convene and share their ideas, to share their sense of civic pride.

There are issues that will come and go and some of those issues will ignite. When they do, we have to ensure there are things in place that allow Canadians to vet themselves. There is a very good example that we have debated for the last week or so, and that is the whole issue surrounding pensions. I can envision that in the future large numbers of Canadians will get quite upset at the government for its plan. A budget will be presented and within it more detailed explanations will be given as to what will happen with our pension programs.

I suspect there will be a reaction to it and I, for one, will encourage individuals to participate in lawful gatherings in order to express their concerns. That is why it is so critically important, as we debate this bill, that we send a very strong, clear and succinct message to Canadians as a whole that as parliamentarians we view large gatherings of people as something good. We see them playing an important role in democracy, whether it is the protesting of issues or even, for that matter, supporting issues. I will make quick reference to Veterans Day and the large gatherings for our veterans, as well as large gatherings for sporting activities. It is something we need to underline.

The core of the bill suggests that there are those who gather with the idea of instigating in an unlawful way by using masks or disguises in order to evade being identified and we are right to be concerned. The bill at least attempts to bring that issue to the fore.

After today's debate, I believe the government might be in a better position to evaluate. I know one member of the Conservative caucus has suggested 10 years versus 5 years. The current bill, I believe, suggests 5 years as a potential penalty.

However, I do not want the specific debate on masks and disguises to take away--

The House resumed from November 17, 2011, consideration of the motion that Bill C-309, An Act to amend the Criminal Code (concealment of identity), be read the second time and referred to a committee.

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

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, I am pleased to have an opportunity to say a few words about Bill C-309, which is a private member's bill and not a government bill. We keep seeing more of these bills from the opposite side where everybody decides that they want to have a crack at the Criminal Code because, for some reason or another, the Criminal Code is inadequate to handle crime.

I have a copy of the Criminal Code here and it is a very heavy document. It is about three inches thick and it has a lot of crimes in it and yet there do not seem to be enough crimes for the members opposite so we need to add more.

I have heard the members opposite say that there was no proof that the long gun registry prevented one crime. I understand the Parliamentary Secretary to the Minister of Public Safety says that is “true, true, true”, but I do not agree with her. I invite her to look at the alternative title. This act may be cited as the preventing persons from concealing their identity during riots and unlawful assembly act. So, by making it a crime to wear a mask during a riot, that would actually prevent it from happening. Of course it will not prevent it from happening. It would punish it by making it an additional criminal offence. Somehow, knowing where guns are, having a system that keeps track of them and prevents people from selling them willy-nilly, as in the gun registry, for example, does not prevent a single crime and does not prevent guns from getting into the wrong hands, but yet making something a crime by this bill is preventing crime.

As I say, this is a private member's bill and private members are entitled to bring whatever pieces of legislation they want. However, that also means that we need to have a good look at it.

The Criminal Code is called a code for a reason. It is a complex, interwoven series of bills brought together over time. I think the first Criminal Code in Canada was introduced in 1892 in an attempt to codify the criminal law. There have been changes made over time but it is really something that governments, not private members, should do because it is criminal law. It is a very serious matter. In this case, if this law were passed, it could make somebody liable to imprisonment for five years for being at an unlawful assembly with a mask.

It always worries me when private members start delving into the Criminal Code and looking for new offences, because they do not always read the entire Criminal Code, and I do not expect them to, so they may not know what else is in the Criminal Code. Some lawyers know perhaps a little more than some people. However, I need to point out to hon. members that it is already an offence to wear a mask with the intent to commit an indictable offence. There is already a substantive section of the Criminal Code that says a person cannot wear a mask with the intent to commit an indictable offence. It is subsection 351(2).

What are we doing creating new offences? Why are we doing that? If there is a need to charge somebody for wearing a mask with intent to commit an indictable offence, and rioting is considered an indictable offence, then the tool is already there. We need to be very careful about assemblies, whether they are lawful or unlawful and when they become unlawful and what is considered unlawful, because nobody supports rioting.

The last time I looked at the Criminal Code, smashing windows, whether one is wearing a mask or not, is a criminal offence. Burning police cars is a criminal offence. The fact that someone wears a mask is an additional criminal offence, already.

The kind of remarks we get from members opposite is that we like the idea of people burning police cars. This is the kind of talk that makes people wonder what those fellows do with their time. Do they think we like rioters? No. We have the same feelings about people taking that kind of action as they do. Those members do not have a monopoly on feeling terrible when somebody does something like that, destroying property, or police cars or starting fires. No citizen of the country enjoys that.

The member talked about the G20 in Toronto. He did not talk about the law-abiding citizens who were arrested and herded into police custody, or the tourists who happened to show up with their children and were arrested. He did not talk about the proper understanding of how crowds could be controlled.

We have to be very careful about passing laws willy-nilly on issues that are already be handled by the existing Criminal Code.

The members cannot come in here, be heroes and say that they are disgusted with rioters, so they want to have a new crime on the books. It is already a crime to engage in a riot. If we look at the definition of a riot, it does not take very much to allow a police officer to arrest somebody. Not only that, there is already a provision in the Criminal Code that makes it an indictable offence to wear a mask with the intent of committing a criminal offence. People do not even have to commit a criminal offence, they just need to have the intent to commit a criminal offence. Rioting is an indictable offence.

We have to be careful when we start taking the Criminal Code, adding sections, increasing penalties and so on. It does not serve to prevent things from happening.

Nevertheless members opposite think they have come up with behaviour that disgusts people, like rioting, and that disgusts me as much as them, and they want to create a new crime. However, it is already against the law. It is already in the Criminal Code.

If the government and the Department of Justice looks at all of these things and says that somehow or other the law is inadequate and that it wants to refine it, it is something I think all members of Parliament would like to listen to and hear the justification for it.

However to stand and say “I am disgusted with rioters, therefore we should make the penalties harsher or add new penalties” when the Criminal Code already treats it as a crime, is using Parliament for the wrong purpose.

I respect the hon. member. I know he is sincere in what he says, but to suggest that this somehow will prevent these things from happening is a bit naive, particularly when it is already a criminal offence. I have a few cases here where individuals were arrested for wearing bandannas.

[Rob Clarke, Conservative, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, I am pleased to rise today to add to the debate of Bill C-309, a bill to prevent persons from concealing their identities during a riot or unlawful assembly.

I would like to provide the House with a few details here with my 18 years of experience as a former RCMP officer. One of the things in my training involved the participation in a riot as part of a tactical troop. Some of the general public call it the riot squad.

What I am hearing from the opposition could not be further from the truth. It is about trying to protect the civil rights of individuals, when they demonstrate, and ensuring the public peace is upheld.

During riots or civil protests, it is appalling to watch the behaviour of certain individuals, when they are trying to promote or instigate a full out riot, and where individuals are being set up, at the expense of others, for harsh punishment or harsh injuries.

The bill, which was put forward by my colleague, the member for Wild Rose, would make it an offence to wear a mask or to otherwise conceal or disguise one's identity during riots and other unlawful assemblies.

The provisions of the bill are necessary. One might even say they are overdue, as recent events have shown. In the space of just over a year, two large cities in Canada have been the sites of major riots.

Destruction of public property was widespread when anarchists descended on Toronto, using the cover of a peaceful protest during the G20 meetings, to shatter windows, clash with police officers, and threaten innocent bystanders, even news reporters and photographers in their path. Fires burned in the streets and black smoke billowed over the skyline.

Thugs used the excuse of the Vancouver Canucks loss in the seventh game of the Stanley Cup finals to wreak havoc in that city. Police cars were overturned and businesses were broken into and looted. Canadians were heartbroken and horrified to see such mayhem in their country. It is sadly ironic that something as un-Canadian as a violent riot could happen in the wake of the most Canadian of activities, a hockey game of all things.

These riots were also an international black eye for Canada, a nation that is admired as a world leader for peace, order and safety.

These riots started in different cities under different circumstances. However, in both cities much of the violence and looting was carried out by people who concealed their faces with gas masks, bandanas, balaclavas, even hockey jerseys pulled over their noses. Other materials were used to conceal the many faces of the rioters and looters. I believe this is cowardly and the thugs knew exactly what the consequences of their criminality would be.

For the most part, these are not the actions of exuberant or inebriated people simply caught up in the moment. These were calculated efforts by people intent on criminal behaviour in order to avoid prosecution. Leaving themselves anonymous, these hoodlums felt free to assault people, and destroy public and private property.

I remember watching these individuals on the news on television dress up and proceed to smash windows, and then try to flee the scene of the crime. With BlackBerrys and YouTube, innocent good citizens chased these people down, watched them undress to join the crowd again, caught in their black apparel. The Vancouver police are still working to identify some of these rioters and bring them to justice.

I do not fault the police for the time it has taken to trace these individuals because many investigations are very complex and the complexity of this is of huge magnitude to undertake. Rather, I sympathize with the enormous task ahead, as the police tries to identify and charge the perpetrators who, in many cases, had most of their identifying features covered up.

It cannot be easy for the investigators, I know, but members of the House could help make that task less onerous in the future. They could help through the simple act of supporting Bill C-309.

How would that help? It would help in a number of ways. Most importantly, it would help deter violence at such events from escalating in the first place.

In an era of cellphones, cameras and video, when every bystander has the potential to be a reporter, a law preventing people from disguising themselves would give many people a time to pause. The deterrence value alone is of great value for police trying to control a mob and ensure the public's safety is maintained.

I am not blind to the reality, having observed this myself. While deterring crime is the reason behind any piece of criminal legislation, we know there are those who have no respect for the law, no matter what the consequences.

Bill C-309 would give the police a valuable tool to deal with them. It would be another tool in their tool kit. In a riot or an unlawful assembly, law-abiding citizens should be eager to follow police instructions to disperse and clear the area for the sake of their own personal safety, and that safety is the utmost when police are at the scene. It defies common sense to believe that any persons ignoring orders to do so and who, in addition, are wearing a mask to conceal themselves are there for any good purpose, which brings me to a point of reflection.

I remember, through all my training, having to stand in a black jumpsuit, wearing a helmet, steel toe boots, gloves, shoulder protectors and a gas mask in the heat of the day and watching the perpetrators don the same apparel; the shoulder pads, motorcycle helmets, balaclavas and gas masks. They would try to grab members' shields as they were trying to protect innocent bystanders. They would try to antagonize bystanders to start a riot. It was hard for us to be on the other side and keep our temper and watch while the media was in the middle. All these thugs are doing is using the media for their own gain.

As things stand, unless the police witness a person committing an offence, they need to prove a high level of intent before they intervene, even when a person is wearing a disguise or otherwise hiding his or her identity, even in the midst of an all out riot. This state of affairs just does not make sense.

We have 11 police officers in this caucus. Police need to have the ability to diffuse riots, just not to react. That is reacting policing, not preventive policing.

Bill C-309 would unshackle police in such situations by making the very act of wearing a mask in a riot or an unlawful assembly an offence on its own. Police would be able to identify those individuals before a major casualty took place.

Simply put, when police are engaged in measures to control a riot or unlawful assembly, as defined under sections 65 and 66 of the Criminal Code, which this bill would amend, then wearing a facial covering without lawful excuse to do so would become an offence in itself. This provision would help police deal with these individuals for the offence of wearing a mask rather than waiting to witness them commit a separate offence that could harm persons or property before they can take action.

This bill is pre-emptive in a sense that police could use their discretion to arrest or detain people who keep their faces concealed during a riot.

It is my hope that the penalties in the bill would first and foremost deter people from participating in a riot or unlawful assembly in the first place. However, for those who still choose to riot despite the consequences, police would have a new tool in their tool kit to help them control these volatile situations.

The Charter of Rights and Freedoms guarantees Canadians the freedom of peaceful assembly, which includes peaceful protests, and law enforcement officers understand this. They want to ensure that all people have the right to protest but, utmost, to get rid of the thugs who are causing the problems in the protests. Let those who want to demonstrate do so, but do so peacefully.

I have heard some people say that they worry that this will infringe upon that freedom. Nothing could be further from the truth. Having witnessed this myself first-hand, the police are there just to maintain and ensure that the protestors are safe. This bill deals only with individuals in a riot or an unlawful assembly situation. It is obvious that peaceful assembly has left the building at this point.

Far from violating the Charter of Rights, the bill would help protect peaceful protesters by allowing police to identify those in the mix who intend to commit crimes. I find that interesting. I remember one incident where one masked protester was running back and forth trying to escalate the event.

I hope that, for the safety of the general public, members will consider Bill C-309 as it would give people the right to honestly and protectively protest in peace. I urge the House to consider Bill C-309.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I welcome the opportunity to speak to Bill C-309, but I want to begin by confronting the Conservatives on their obsession with crime. We have before us a bill ostensibly produced by the folks in the Prime Minister's Office or the Conservative House leader's office. I think we need to be clear about this. Their so-called crime agenda is in full swing, predicated on ideology and not evidence. They do not believe in evidence or facts.

The Conservatives want to continue creating fear among Canadians and to perpetuate the idea that there is rampant crime on the streets, that there are riots everywhere, that the government, in response, must be brave and take decisive action to breathe life into that particular bogeyman. On the rare occasion that Conservatives might actually propose something that appears worthy of some consideration, they wonder why Canadians are suspicious.

The Conservatives' record of ignoring evidence and perpetuating fear is well-known. The fear agenda gives me rise to questions about their sincerity. One only has to look at Bill C-10, safe streets and communities act. As far as I am concerned, it should be called “keeping the myth of out of control crime alive so we can fundraise to our right-wing base act”.

For the Conservatives, repeating a myth often enough convinces them that it must be true. It is a classic right-wing Republican tactic; that is to say, the Conservatives operate not unlike a pack of hyenas. They see an opportunity to feast on the fears of Canadians, fears which are often of their own creation, and then they pounce. As part of the bullying tactics, they are always ready to attack anyone who disagrees with them, then issue a fundraising letter containing more myths. This behaviour, now firmly rooted in their political DNA, is a again not unlike the hyena, opportunistic and completely natural. Then they call it tough on crime. I call it tough on facts and evidence.

When I meet people around the country and in my riding, they are not running up to me and talking about crime or crime rates. They are more concerned about jobs and the economy. They are concerned that my riding of Charlottetown is losing 500 jobs as a result of cuts to Veterans Affairs. They are worried about the cuts to Service Canada and the closure of EI processing centres.

They do not understand why the federal government is the only level of government that will not participate in the funding to clean up a sewage problem in the Charlottetown harbour. They do not understand why the Conservatives have cancelled a cable that would ensure energy security to Prince Edward Island.

Here we are with another crime bill. Why did the member not introduce a bill to reduce poverty in Canada, a bill to help the poor, and to bring them in from the margins of poverty? Why did he not do that?

It is as if the Conservatives lie awake at night dreaming about ways to put more and more people in prison. It is an obsession rooted not in science or evidence, or even reason. It is irrational.

I want to assure the member that none of us on this side will stand by while Conservatives proffer myths or slogans. None of us on this side will tolerate the idea that because we disagree with the Conservatives on matters related to crime, that somehow we do not care or we are soft on crime. It is a falsehood and the members opposite know it. To disagree with the government is not a crime, at least not yet, but who knows?

With respect to the bill, we all witnessed what happened in Vancouver last year during the Stanley Cup. We know that the behaviour of far too many people was deplorable and criminal. None of us who sat around watching the hockey game that night and the news stories thereafter were thinking, gee, we wish there were more destruction and violence. None of us said, “Gee, I hope that guy who just set fire to the car gets away with it”. Listening to the Conservatives though, one would think that members from this side were there and involved.

I wonder what the member thinks about his own government's behaviour with respect to the G20 in Toronto. What does he think about what occurred, when at the G20 peaceful protesters, yes, peaceful protesters, were summarily denied their constitutional and charter rights to freely assemble?

What does he think, when protesters, acting peacefully, not violently, were kettled, rounded up and detained in violation of their charter rights? Why is the member not proposing a bill about protecting the rights of legitimate protesters?

What is his position on those well-documented violations of constitutional rights? Does he believe that citizens have a right to peaceful protest? Why is it that he and his government have refused thus far a public inquiry into the behaviour of the police and his own government with respect to the serious and rampant violation of constitutional rights at the G20?

The right of Canadians to assemble, and to do so peacefully, is a right protected by the charter, a document that many on the other side deep down really do detest. Rioting is already a crime, as the member knows.

The bill before us is deliberately framed in a way that if anyone were to disagree or to suggest amendments, he or she would automatically be designated as a traitor to a Conservative crime cause. Conservatives call that debate?

No one wants to support any Canadian engaging in activity that destroys property, encourages violence and rioting. None of us wish to support the deliberate concealment of someone while engaging in a riot. However, if this government were truly serious about this issue, this proposal would be on the government agenda. If it were brought in by government, it would have been open to have been tested, as required by statute by the Department of Justice, to ensure that it was constitutional.

This is a government bill in disguise. The suggestion that a backbench MP, in this environment, in the controlled and contrived Conservative government, such as the one we have now, would produce a bill without the consent of the PMO and its House leader's office is quite frankly a stretch.

If the government were serious about amending the Criminal Code to deal with aggravating circumstances, such as those contemplated in this private member's bill, it should have introduced a government bill. At least that would have allowed for greater and wider debate. The Conservatives are not interested in debate, nor facts, nor evidence. We see a sad example happening right now in the justice committee.

We will review Bill C-309, insist that it receive a thorough analysis, and if necessary, propose amendments. Until we are convinced that the bill meets the test of the charter, we will not and cannot support it.

Members should listen to this because what I am about to say will probably send shivers up the spines of the Conservatives. If we can be convinced by evidence and facts, and the testimony of experts that this bill is constitutional, then let the debate begin.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Mr. Speaker, when examining the provisions of a bill, I think parliamentarians have a duty to ask themselves a simple question: will this bill improve our society? Today we are looking at Bill C-309, An Act to amend the Criminal Code (concealment of identity). I have no doubt that the author of this bill was motivated by a desire to improve public safety. That seems to be the answer the government automatically gives these days. Thus, members really need to ask themselves if this bill is an effective way to improve public safety.

Let us be clear: like all parties, the NDP condemns any vandalism and criminal behaviour at any assembly. Furthermore, we fully agree that any crime committed by someone wearing a mask deserves a tougher sentence. The NDP fully supports the sections of the Criminal Code that protect the public against seditious behaviour, vandalism and the masked individuals who commit these acts. What worries me, however, is the direction in which bills like this on public safety are taking us. I imagine this bill was drafted in response to the problem of crimes committed anonymously by people wearing masks during unlawful assemblies or riots.

No one is denying the troubling images that came out of the recent riots in Vancouver, Montreal and Toronto. In fact, I have a great deal of empathy for all the small businesses and shops that were damaged during these demonstrations. It is extremely sad, and I hope they will be compensated for this. In some cases, some of the offenders did indeed wear masks; I am aware of that. If this bill truly is a response to those events, then it is the responsibility of this House to determine whether it is a suitable and adequate response. Let us look at the content of this bill.

It proposes two very simple changes to the Criminal Code. Clause 2 of the bill calls for a change to section 65 of the Criminal Code making it a criminal offence to wear a mask or any other disguise when participating in a riot. The bill also proposes amending section 66 of the Criminal Code, which is essentially the same thing, but in the context of an unlawful assembly.

I want to come back to my original question: will this legislation improve our society? Changing our society for the better means recognizing a problem and being willing to solve it. As I was saying before, the NDP fully supports subsection 351(2) of the Criminal Code, which makes it an offence to cover one's face in the commission of a crime. The courts have recognized that wearing a mask during the commission of a crime can be considered an aggravating factor during sentencing. There are existing measures for handing down tougher sentences for an act committed by a criminal who wears a mask.

How will this bill help Canadians? Is the purpose of Bill C-309 to make it illegal to take part in a riot or unlawful assembly? In that case, Canadians are already protected by the Criminal Code. If the purpose of the bill is to introduce punitive measures against someone who commits a crime, such as vandalism, while taking part in a riot or unlawful assembly, Canadians are already protected by the Criminal Code, as I explained previously. If the purpose is to increase sentences for individuals who commit crimes while concealing their identity, once again, Canadians are protected by court decisions.

Under the Criminal Code, taking part in a riot or unlawful assembly and committing vandalism or other crimes during an unlawful assembly are already illegal, and concealing one's identity while committing a crime during an unlawful assembly or riot is considered to be an aggravating factor. Therefore, I question the need for this bill. I believe that it is basically redundant. The main issues of public safety that are the basis for this bill are already covered by the Criminal Code. This bill's only new contribution is to make it an offence to conceal one's identity while taking part in a riot or unlawful assembly.

According to this bill, an individual could be detained, arrested, indicted and sentenced to a maximum of five years in prison simply for being a masked spectator in the area of an unlawful assembly.

In June 2010, during the G20 in Toronto, Canadians witnessed how a small riot led to police crackdowns. The result: thousands of innocent people were arrested and detained. Approximately 1,500 Canadians were arrested or detained as a result of a riot involving fewer than 20 people. The authorities subjectively considered the whole demonstration as an unlawful assembly and took away the civil liberties of 1,500 innocent demonstrators, journalists and spectators. We must remember these events when we are considering a bill such as this one.

The limitations imposed on civil liberties to ensure public safety must be the least restrictive possible. I think that all the hon. members would agree with me on this. Otherwise, there is no limit to the restrictions that can be imposed on fundamental freedoms.

I would also like to point out that this bill takes away an individual's right to demonstrate anonymously. An individual is not necessarily going to commit a crime just because he or she is wearing a mask at a riot. It is reasonable to think that the person just wants to remain anonymous and protect his or her identity.

In the context of this bill, we must recognize the risk of political profiling of people exercising their civil liberties. Too often, 99% of protestors are peaceful, while 1% choose to vandalize. More often than not, this 1% is condemned by the vast majority of the peaceful protestors. As we saw in Toronto in June 2010, the peaceful protestors and spectators can be close to non-peaceful protestors. But this bill could lead to the arrest of innocent protestors who wear masks because of their geographic proximity to non-peaceful protestors.

It bears repeating that criminals who conceal their identity are already punished more severely in this country. I also want to point out that this bill would give judges the discretionary power under the Criminal Code to consider an offence committed while wearing a mask as an aggravating factor. Some people may consider that to be a good thing. However, a 2005 judgment by the Provincial Court of Alberta, R. v. Potter, already provides that protection.

I would like to thank the member for introducing this bill in the House. I understand the source of his concerns. However, in its current form, this bill is redundant and could have serious consequences for civil liberties in this country. I encourage members in this House to carefully examine the implications of this bill and to ask themselves whether it is worth jeopardizing our civil liberties. I am leaving it up to the House to decide on an appropriate course of action.

[James Bezan, Conservative, Selkirk—Interlake, MB]

Mr. Speaker, I want to applaud the member for Wild Rose for Bill C-309, for his interest in public safety and for responding to concerns raised by police officers and citizens about providing more tools where there is a need and a gap in the Criminal Code to ensure that public safety is first and foremost the goal of our government and the goal of Canadians.

I note his amendment to the Criminal Code proposes a term of five years imprisonment for offenders. However, I also know that section 351(2) of the code also has an offence for disguise with intent and it proposes a term of imprisonment not to exceed 10 years.

Has the member for Wild Rose given any consideration to amending his bill to harmonize his penalties with what is in the Criminal Code today?

[Blake Richards, Conservative, Wild Rose, AB]

moved that Bill C-309, An Act to amend the Criminal code (concealment of identity), be read the second time and referred to a committee.

Mr. Speaker, I am pleased to open debate today on my private member's Bill C-309, the preventing persons from concealing their identity during riots and unlawful assemblies act.

This legislation would add new penalties for wearing a disguise to those sections of the Criminal Code that deal with individuals who participate in a riot or an unlawful assembly. This bill is a measured response to a problem that law enforcement officials have grappled with for years, and the need for which has been further highlighted by recent events in the cities of Toronto and Vancouver.

At the G20 meetings in Toronto, and again in Vancouver after game seven of the Stanley Cup playoffs in June, law-abiding citizens were assaulted; businesses were broken into, vandalized and looted of their merchandise; and public property owned by taxpayers, such as police cars, was torched and destroyed. These violent events had a theme in common that was noted by law enforcement officers who were working to protect public safety at the time. They noted the prevalence of people who wore masks or facial coverings to conceal their identities during the commission of criminal acts.

According to police, some of the perpetrators deliberately masked up prior to the gatherings becoming violent, while others mingled in the crowd and covered their faces in order to carry out criminal acts of opportunity. These offenders vandalized property and assaulted police officers and innocent bystanders. They say a picture is worth a thousand words. Who here can forget the images from Vancouver of looters with their shirts, jackets or hockey jerseys yanked up over their face while streaming through broken store windows with heaps of stolen merchandise, or thugs jumping into the crowds to kick or hit an innocent bystander in the thick of the rioting?

These images tell a very revealing story. They tell us that criminals are well aware in this age of social media and all-pervasive cellphone cameras that they run a very high risk of their behaviour being recorded and they had better hide their identity if they want to avoid being caught and brought to justice for their actions. More and more of them are doing exactly that. In too many cases, these offenders escape identification by covering or obscuring their face at the time of the offence. This is an unacceptable state of affairs. No one should be able to commit violent and destructive crimes against persons and property with impunity under a cloak of anonymity, yet that is exactly what we have seen happen in these cases.

Police have long advised that their inability to pre-emptively deal with individuals who were concealing their identities in the middle of such explosive situations is hindering their ability to maintain control and to protect the public. Currently, there is no authority for police to pre-emptively stop people from concealing their identity in a riot. They must observe an offence before they can move to stop it, even by a masked individual and even in a riot. Their powers in these dangerous situations are reactive rather than proactive. Our Criminal Code does provide a penalty for disguise with intent in subsection 351(2).

When police in Vancouver recently recommended charges of participating in a riot against some of the suspected rioters there, they did in fact propose charges under that section in a very small number of cases, but why only in a small number of cases? In only a small number of cases where people had their faces concealed were police able to verify the suspect's identity afterwards.

The charge of disguise with intent can be a challenging one to apply, and since it is applied in the aftermath of an incident, it is not altogether helpful in actually controlling riot situations as they occur.

A police officer trying to maintain control in the midst of a riot has little time or means to meet the high level of intent needed to satisfy subsection 351(2). They are too busy defending life and limb, their own and those of the citizens they were sworn to protect. Yet police repeatedly tell us that it is these very people, those who disguise themselves and mask their faces, that are most often the instigators and the ringleaders of such trouble.

What if there were a measure designed to strip away anonymity from criminals during such disturbances? What if the very act of wearing a disguise in a riot became in and of itself an offence? What if police had the means to order those who were concealing their identities in a riot to remove their disguises or risk detainment or arrest? That would change the stakes dramatically.

People would then have a very clear choice in front of them. They could choose to remove their disguise, show their face and be identified and held accountable for their criminal actions, or they could choose not to and risk arrest for the offence of wearing a mask in a riot. Either way, public safety would be improved.

It would improve public safety by providing a new deterrent for people to wear disguises in the first place. If people think twice about concealing themselves, then surely the prospect of committing a crime without the benefit of anonymity would give them even greater pause. This would allow us to better identify people who engage in criminal riotous behaviour and it would improve the police's ability to deal with people who are wearing disguises at the time of an incident, thereby preventing them from rioting at all.

This bill is a good idea, but it is not necessarily a new idea. Other democratic governments, such as those in the United Kingdom, France and the State of New York, have developed legislation that would either limit or prohibit the wearing of disguises, masks or facial coverings. For example, in 2001, the United Kingdom passed the anti-terrorism crime and security act, which includes sections regarding the use of masks and disguises.

It is only when a peaceful protest or assembly turns into a riot or an unlawful assembly that the provisions of the bill would come into force.

When does a peaceful assembly become a riot or an unlawful assembly? The Criminal Code tells us when. It tells us that an unlawful assembly has occurred when:

--three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will,by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

When do we know that police are dealing with a riot situation? Again, the Criminal Code, in section 64, tells us a riot is occurring when “an unlawful assembly has begun to disturb the peace tumultuously”.

We see in law that an unlawful assembly evolves into a riot when there is tumultuous conduct by participants. Typically this involves acts of violence or threatened violence, or destruction of property.

Both definitions provide us with clear indicators of when a peaceful assembly has ceased to be such and when police are now intervening in an illegal act. It is therefore no infringement on charter rights to peaceful assembly for police to intervene when such an assembly has degraded into either an unlawful assembly or a riot.

It is in those same situations when police are working to restore order that the provisions of Bill C-309 would make it necessary for any masks or disguises worn by participants to be taken off immediately.

Riots and unlawful assemblies already carry Criminal Code penalties. Bill C-309 would simply amend already existing sections of the code to make it an added offence to wear a mask or other disguise to conceal one's identity during these illegal acts.

Let us be clear. Anyone who is wearing a mask or a disguise to conceal his or her face in the midst of a riot is exhibiting aggravating behaviour. Law-abiding citizens who get caught up in a riot will naturally be seeking to clear the area on police orders. It is hard to imagine that others who ignore police instructions to depart the area and who, in addition, continue to linger in the vicinity while wearing a disguise are seized by any innocent motives or good intentions in those kind of circumstances.

This bill would not remove police discretion. Police who are trying to restore order and protect safety in a riot situation are not likely to be interested in pursuing anyone who is already obeying orders to leave the area. In fact, someone fleeing the scene of a riot on police orders may in a real sense be seen as no longer participating in a riot as defined by the code.

It is not the people leaving the scene of trouble who have the police's attention. It is the loitering, masked troublemakers who concern the police. Someone with his or her shirt up to block out tear gas for example is not likely to concern riot control police if that individual is actively running away from the scene. However, individuals who come prepared with gas masks or bandanas and are wearing them in the trouble spot in defiance of police directions to move on is another story.

There is evidence that at these riots many of the people wearing masks and facial coverings were part of organized groups with premeditated intent on confronting the police and causing mayhem. In addition to targeting the criminals of opportunity that we see at riots, this law also targets anarchists, those individuals who come to protest with the premeditated intent to use the assembly as a cover for their criminal behaviour.

Anarchist groups are increasingly employing the tactic of concealing their identity by wearing disguises, masks, or other facial coverings for the purpose of committing unlawful acts in a riot situation. Police have seen it time and again, individuals with their faces concealed mixing into a group and then instigating riotous behaviour, such as throwing objects at police, tossing marbles under the legs of police horses to trip them up, or covering up their faces before smashing windows, setting fires, stealing, assaulting people or flipping over vehicles. These individuals then remove their facial coverings and slip away in the confusion, some never to be apprehended. It is vexing for police and dangerous for the public to see such individuals escape the consequences of their actions.

I would argue that their clean getaways in fact embolden them to redouble their efforts and engage in criminality again, but Bill C-309 presents a new tool for police to deal with them. These people would now risk arrest for wearing their masks in a riot. Police would no longer have to wait for them to start assaulting people and destroying property before they could move against them.

Police know they need this ability to act pre-emptively against disguised individuals in riot situations. Police chiefs in a number of Canada's major cities, including Calgary, Toronto, Vancouver and Victoria, have all told me they support my bill.

Vancouver Chief Constable Jim Chu had this specifically to say about my bill:

The Vancouver Police Department is pleased to support this bill. When we see protestors in a crowd donning masks and hoods we know there is a very good chance that violence will soon follow.

In a resolution that he drafted this year for the Canadian Association of Chiefs of Police, Victoria Chief Constable Jamie Graham urged the government to take aim at this particular problem. His resolution had this to say about masked individuals: “Wearing facial covering allows an offender to blend in and mix with a larger lawful group of peaceful individuals without being identified. There an offender may commit unlawful acts under disguise then remove their masks or facial coverings and blend in with peaceful protestors.” It goes on to say: “Wearing a disguise, masks or other facial coverings allows a person to conceal their identity whose intent it is to commit an unlawful act prior to, during or immediately after a lawful assembly or protest.”

Police know through hard experience that it is often the organized ring leaders or instigators of such trouble who come prepared with materials to conceal their identities, or it is people who decide in the thick of things to assault others or destroy property who will attempt to conceal their identities, as we saw in Vancouver. Whoever they are, organized or not, no one in Canada should be able to hide in plain sight while committing crimes.

I have heard some suggest that if this bill passes, it may target individuals who wear facial coverings for religious or cultural reasons, but that view fails to take into account the exemption in this bill for lawful excuse. My bill states:

Every person who commits an offence...while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence--

What are examples of a lawful excuse? Someone who legitimately wears cultural or religious dress that obscures the face, or bandages for legitimate medical purposes, for example, might fall under the exemption. Someone who could demonstrate a lawful excuse that is legitimate and provable for wearing a face covering would not face the penalties of Bill C-309, although the person would still face the existing penalties for participating in a riot.

I will close by urging my colleagues in the House to support Bill C-309. I am convinced that no one in the chamber of any political persuasion wants to see repeats of the destruction and violence that took place in Vancouver and Toronto. This bill has the potential to deter and de-escalate such unfortunate events in the future to protect persons and property. I sincerely hope that all members will join me in moving the bill forward.

[The Chair, Conservative, Harold Albrecht]

Are there questions or comments? Seeing none, Bill C-309 is considered votable.

Next is Bill C-300.

Did I miss one? Okay? Everybody is so quiet that I thought I missed one.

[The Chair, Conservative, Harold Albrecht]

Does anyone have questions or concerns?

Bill C-304 is considered votable.

Next is Bill C-309.

[Blake Richards, Conservative, Wild Rose, AB]

moved for leave to introduce Bill C-309, An Act to amend the Criminal code (concealment of identity).

Mr. Speaker, it is a pleasure to rise today in the House to introduce my private member's bill, the preventing persons from concealing their identity during riots and unlawful assemblies act. This act would amend 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 unlawful assembly.

This would give the tool to police to first, hopefully prevent these kinds of things from getting out of hand; and, second, if and when they do, it would give them another tool to punish those who were involved in these kinds of things and ensure they do not get too far out of hand.

(Motions deemed adopted, bill read the first time and printed)