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.

[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.