Justice Committee on May 1st, 2012

[Chief Jamie Graham]

I would say that the slowness and the thoroughness that our prosecutors require before a charge is laid are some of the reasons. They require a complete court brief before a charge is even contemplated. So it's a slow process. Our prosecutors are some of the best in the country. It's just that the policy they're required to work under is difficult.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you.

Mr. Gauthier, it's good to see you again.

After the riot in Vancouver, there were many citizens who went downtown. In fact, my husband was one of them. He took his tool box and a broom and other things he thought might help. They went down to try to show some solidarity with law-abiding citizens and with business owners and others in cleaning up the city. However, I know there were many business owners who were left to try to do this on their own. There's only so much in terms of actual municipal resources to help. Do you have some examples of business owners cleaning up by themselves, trying to recover from the damage that was done, and the time that took for them?

[Charles Gauthier]

There are countless examples of businesses that were on their own to clean up or that had to contract the services of companies to help them with that. Certainly it was very gratifying to see citizens coming out the day after, and we're certainly appreciative of all their efforts. Those were focused primarily on the first day afterwards, but many of the businesses were left on their own to basically handle the crisis in the days that ensued.

We worked with a number of different agencies to establish a restoration fund with contributions from three or four corporate citizens, corporate organizations in Vancouver. That money was used to pay the deductibles that those businesses had to pay on their insurance, and those who didn't have sufficient insurance were able to apply for the funds and to use those to offset costs related to the riot and the damage.

[The Chair, Conservative, Dave MacKenzie]

Mr. Scott.

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

Thank you, Mr. Chair.

Thank you, Chief Constable Graham for coming and Mr. Gauthier for being here virtually.

The first question is a quick yes or no, or just that with a little elaboration.

Chief Constable, do you know whether the Canadian Association of Chiefs of Police or the Canadian Police Association has taken any position on this bill?

[Chief Jamie Graham]

I presented a slightly different version of this bill last year. I think it was looked at by their law amendments committee, but I don't think there's been a formal recommendation on it yet. Certainly the chiefs of the bigger departments who I know personally wholeheartedly support where the bill is going.

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

Okay, thank you.

I'll just state one general concern I have, which is that a specific amendment for a specific problem, from my point of view, should be as specific as possible, especially when there are implications for cherished charter rights and especially when, on the face of it, there is already a provision in the code that seems to address the core examples that Mr. Richards has been giving. So I'm very much hoping that this committee will look closely at whether there's just too much ambiguity. Discretion is valuable and I understand prosecutorial and police discretion is part of our justice system. As much guidance as possible is also valuable, so that's where I'm coming from.

I'm just wondering if I could simply ask three very quick questions. If you could just take note of what they are and then answer them, that would be great, because otherwise we risk my not getting to my key questions.

The first one is the transitional issue that's been brought up, a situation where a person has no reasonable opportunity to disperse. There's not been enough time, maybe kettling or something like that has been used and they can't even get out, or they simply didn't know. It's too big a demonstration or word didn't get to them. From your point of view, if you were an officer on the scene, would you count that kind of situation as a lawful excuse, where people just can't get out after a protest has become either an unlawful assembly or a riot?

The second one.... A person with religious facial covering is one of the examples that keeps getting brought up. Nobody's disputing that it's perfectly lawful. The question I have is this. After a protest has become an unlawful assembly or even a riot—somewhere along the line it's a riot—if that person stays and is wearing a face veil, for example, does that constitute an ongoing lawful excuse? Or has that become unlawful?

The third question is on anonymity. There's some kind of assumption that anonymity is, almost by definition, the problem here—the deliberate anonymity. But I'll give you two examples. Some people worry about state agencies gathering information during lawful assemblies—photography, for example. In our own history we've had documented examples of security services doing that. So sometimes they will actually deliberately be anonymous for that reason. It's a marginal case, but it's a case. Something a little bit more common, I think, is diasporic residents or citizens of this country who are protesting against a repressive regime and know that it does engage in surveillance of peaceful protests, who deliberately want to disguise themselves. Would you agree that both or either of these are examples of lawful excuse?

The fourth one is the question of somebody wearing a mask, putting it on. Or maybe they're just grabbing their scarf, putting it on after something has become a riot and has turned into something where there's tear gas. Is that a lawful excuse?

[The Chair, Conservative, Dave MacKenzie]

Unfortunately, it hasn't left a lot of time.

[Chief Jamie Graham]

I was going to say yes, no, yes, yes, but I can't do that.

Of all your question areas, I think the one that requires further discussion is a person who would protest and want to have his face covered because he knows that there may be a foreign government that will cause harm to his relatives in his home country. That's the value of lawful excuse. That would certainly get my attention and I doubt very much that somebody would be prosecuted. However, you waive that right once you actually participate in the riot. This is where the police discretion comes in. I can't imagine a woman with a religious covering or facial covering, first off, participating in a riot where they condone that. That would certainly fall into areas of discretion where we wouldn't prosecute, once again, unless they were involved in the riot itself.

I guess the issue I would make is that we all make choices in our lives. I choose to be at a riot. I choose to participate. I choose not to go home when things start to turn ugly. We are all responsible for our conduct and our actions. I think choices have to be made by people who attend these kinds of events. I'll let it go at that.

The majority of your questions would want to be addressed by a legal scholar or a crown prosecutor.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair, and my thanks to the witnesses for being with us here today.

I'll begin with Mr. Gauthier. Can you just give me an idea of what policy process you have in your association in order to adopt the kind of position that you're here to advocate today on their behalf?

[Charles Gauthier]

Two of our committees looked at the bill, and we had a number of people on one of the committees who had backgrounds in either security or police enforcement. We then presented a position paper to the board of directors, and the board of directors discussed it and unanimously approved it back in January.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'm glad you mentioned the word “unanimously”. It answers the next question I was going to ask, which was how supportive your association was. You've told us that it was unanimously supportive, so I appreciate that.

Could you just remind me again how many members overall there are in the Downtown Vancouver Business Improvement Association?

[Charles Gauthier]

There are 8,000 members, and they are business members. They are property owners and business tenants.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

May I assume that you've probably spoken to quite a number of them about this particular piece of legislation?

[Charles Gauthier]

Yes. We actually hosted a breakfast here in Vancouver that Mr. Richards attended. He had an opportunity to elaborate on the bill and answer questions from our members. That was an event to which we invited primarily the businesses that had been impacted by the riot, but it was certainly open to others as well.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Very good. How many people, or what percentage of your membership, have expressed disapproval or disagreement with Mr. Richard's bill, if any?

[Charles Gauthier]

We had no members express dissatisfaction with the position taken by the board of directors.

We do make a habit of communicating the policy positions the organization takes to our membership through the newsletter, and we communicate our positions to the media, as well, which then gets out to the broader public.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Excellent. Thank you.

I'd like to turn my attention to Chief Graham for a moment and just ask you to get at one of the questions the opposition raises from time to time. That is that the existing provisions of the code are adequate to deal with the kind of problem Mr. Richard's bill addresses.

I know that you have already spoken about the necessity, in subsection 351(2), of proving specific criminal intent. But can you tell me, if you are able, what other gaps the police experience in trying to enforce the existing provisions of the code in the kind of riot situation or unlawful assembly situation that occurred, for example, in Vancouver?

[Chief Jamie Graham]

There are a wide variety of circumstances that might be of interest. The difficulty in a riot or unlawful assembly is the protection of the officers who are there to protect the public. You know, we're given a certain amount of tools to try our very best to do that, but in reality, many times the officers are simply required to observe and to then take action when appropriate, unless lives are at risk. Then they'll gain entry. It's sort of difficult.

But the bar that's put in place in that subsection, the intent section, is extremely high. It has been my personal experience that to gain a conviction, or to even get a charge laid for that particular section, is very difficult. You almost have to have, as an example, the offender running from the bank with a nylon stocking on, with the money in one hand and a pistol in the other. That's the kind of requirement it takes. That kind of difficulty does little to help officers who are facing people who are involved in riots.

When the officers maintain a line in front of protesters, you have to imagine what happens. Many of them will come right up in front of the officers' faces screaming obscenities and yelling and screaming with their faces covered. They commit an offence, but you don't know who they are. If you take action, the fight breaks out instantly. So you have to rely on tools. If they don't have masks on, and this kind of unlawful assembly is under way, we think we could certainly take action later on.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

You could take action after the fact, when circumstances are less volatile. Is that it?

[Chief Jamie Graham]

That's true, yes.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Do I have any time, Mr. Chair?

[The Chair, Conservative, Dave MacKenzie]

You're out of time, sir.

We'll go to Mr. Jacob.

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

Thank you, Mr. Chair.

My first question is for Chief Graham. Among the issues that have been raised, there's the fact that the police don't always disclose their identity during demonstrations or riots. Would the new offences apply to them? If so, should there be a specific exception for peace officers?