Justice Committee on May 3rd, 2012

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

Thank you, Mr. Chair.

Inspector Rai, I'm from British Columbia. My riding is Delta—Richmond East. It's my understanding that the Vancouver police were only able to lay two charges under section 351 so far, relating to the Vancouver riot. Is that correct? Do you know the number of charges that were able to be laid so far?

[Insp Steve Rai]

The number of charges that we've recommended is 592 against 200 rioters. The number that have been approved by the crown, and they're working their way through these—they've approved 226 charges against 85 persons. So it's sort of a processing line.

We're continuing to recommend charges or to process people, we're continuing to use technology to unmask rioters involved in criminal activity, and the crown is working through what we've been providing.

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

Were those charges laid under section 351 or some other sections, or is it a variety of sections?

[Insp Steve Rai]

I'm not on the investigative part of the riot investigation team, but the charges include everything from mischief, break and enter, commercial break and enter, level two, level three assaults, theft from auto, theft of auto, and the participating in a riot charge.

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

Thank you.

One of the questions that has arisen so far in this deliberation is when you have a peaceful protest that then escalates into what we regard as a riot, a tumultuous event that is then happening. There may be people who have been in that peaceful protest for peaceful reasons and may not hear the riot act being read or may not be in the thick of it, so to speak, and realize that it is now a riot scene.

My question to you is this. Would it not be correct that, particularly from your position as a commander in a difficult situation like this, the police attention is going to go toward those who are in the commission of an offence, as opposed to someone who is not doing anything unlawful other than simply being present and who seems to be trying to leave or get away from the scene? Is your attention not directed at those who are actively engaged in the riotous behaviour?

[Insp Steve Rai]

Absolutely. We had many people who were trying to get out of the downtown core. That was part of what made it difficult for policing the riot or bringing it in control quicker, although it was fairly quickly controlled. You have people trying to get out, who don't want to be involved, and you have people who just want to stand around and film and video, and they are entertained by what's going on. You also have a third element, and it is the group that is now egged on by others, who decide to tear off their shirts, cover their faces, and go in and loot a store.

At some point you're trying to police all three. You're trying to help those getting out. You're trying to help move those who are filming to safer locations so they don't get mobbed, attacked like the one gentleman I mentioned earlier—15 attacked him—while you're trying to arrest these masked-up people going into stores, robbing and pillaging the entire inventory. You're trying as police officers to do all three.

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

Thank you.

Mr. Hunt, I'm familiar with your store, of course, having practised law in downtown Vancouver for way too long. I know, having family there, there were people on the Canada Line, for instance, the next day, bragging about having stolen merchandise from your store. There are many stories of that from people who live there.

At the time this happened at that particular store in downtown Vancouver, do you have testimony about employees or perhaps customers being at risk or having been in a dangerous situation?

[Tony Hunt]

The situation unfolded over a couple of hours. It's been described as surreal by both our security people who were on the ground at the store as well as the staff who were in the store through the event. Before the riot happened, there was a situation in which one of my security people was standing on the inside of our locked glass doors, and on the outside a masked individual walked up in this large gathering and spray-painted the front of our store, in plain view of everyone.

While we certainly could have arrested that person, none of the passersby could, because that actually is not an indictable offence, as I understand. I'm not a criminal prosecutor, but that would be a summary conviction offence.

To me, as soon as that and some of the other events happened, like fires being set, it became a very destabilizing environment. People didn't know what to do with themselves. They were receiving text messages from loved ones, who were watching in live action in media these scenes of great violence and these fires that were taking place.

Our staff initially huddled into a room about the size of the committee chamber here, and then ultimately into a smaller room, which was the security office, behind multiple locked doors. They were fully safe, but it was hard for them to believe that, given what they were able to see on the video screens in the security office. It was described as out of control zombies attacking the store. That was the description our people used. They used words like “terrified” and “traumatized”.

Obviously, we have an excellent employee assistance program and we've been able to provide support for those folks. This is an event they'll never forget. It was dangerous. It was terrifying.

When you call emergency services, because of the priority level, they won't come to a large bonfire built 20 feet in front of your store. They can't send a fire truck. It's a very unnerving situation, and our people never thought they would find themselves in that situation for simply working in a retail store downtown in a major city.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Scott.

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

Mr. Chair, do we have enough time?

[The Chair, Conservative, Dave MacKenzie]

You have five minutes.

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

Thank you so much.

Mr. Rai, if I could discuss a few things with you, that would be great.

In the testimony we heard on Tuesday and now today, we heard three sets of justifications for this proposed amendment, and they all make sense in a certain way. I'm not sure that the provision does the job or whether they're all legitimate. There is one that hasn't been emphasized by you, although it possibly could have been because you talked about digitally unmasking and all the work needed to do that.

One goal of this seems to be to make it an investigative tool, to make it easier to find offenders after the fact, because if for some reason this results in more people being in crowds without masks, they're going to be easier to identify. From your perspective, is that part of why you support this as an investigative tool?

[Insp Steve Rai]

No. Policing is made up of a lot of parts, and the investigative part is another group of people. I was just relaying how difficult it has been to go from zero to a hundred in the use of technology in this kind of investigation. We sent an army of police officers down to Indianapolis to a research lab there and set new standards for technology. The London Met, the U.K., are interested in this.

So that's just one area of it. For me, I'm an operational police officer. I'm a commander on the ground on these kinds of events. For me, it's being able to have a strong, clear, robust ability to mitigate, to dampen the troublemakers in a crowd, and that's essentially it in a nutshell. I'm looking for something that I can use, when there are 2,000 people protesting within footsteps of the art gallery, with spouses and children and grandmas, so that you don't have 10 people show up with backpacks, gas masks, and black handkerchiefs and all of a sudden take over. I can go in there and arrest them.

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

Thank you.

The reason I brought that up is I may have misinterpreted some of Mr. Storseth's own testimony, but he did talk a lot about the investigative side. So it's helpful to have your operational perspective.

This backpack example was also brought up by the chief constable of the Victoria police yesterday. I'm having a little bit of trouble understanding how this new provision relates to the ability to stop and search people who turn out to have masks in their backpacks if they're not already masked.

Can you draw the link for me?

[Insp Steve Rai]

I'm not trying to bring a nexus into unlawful search and seizure or anything like that. It's just that the MO, the method of operation, for tactics by disrupters is usually they show up and store a backpack with all their gear in the bushes somewhere, or they have a very thin backpack under a jacket. They then move into the middle of a crowd and pull out their masks or balaclavas or what have you.

So I think the backpack analogy is more that police are familiar with that method that it seeps into the discussion. But this legislation is not going to help me stop somebody carrying a backpack a block away from a demonstration who happens to be waiting at the bus stop. It's just that they're using backpacks to carry that, yes.

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

That helps a lot. Thank you.

One last question. I was very pleased to hear how you talked about the need for demonstrations to be peaceful exercises in civic citizenship for families and their kids and things. So that perspective is really important. I'm a bit worried that if this turns out to be an effective deterrent on people wearing masks—because they're afraid that when an assembly gets called an unlawful assembly or becomes a riot and they're going to be somehow criminal without knowing it—people will start not wearing masks for that reason.

Do you have any concerns that it would have a deterrent effect on the kinds of protests that do use masks in the ways that you suggested, for caricature, that kind of thing?

[Insp Steve Rai]

The one thing that's involved in policing is discretion, and when you screen police officers, when you train police officers in the fundamentals of law enforcement in our society, you can't get away from discretion.

We're a professionally policed country. With other crimes, such as driving over the speed limit, the police officer has the discretion to give you a warning and let you go. When you have demonstrators, police are professional enough to know when there is a group, say, of doctors advocating for health care or whatever and they're wearing surgical masks, or.... We're not robotic in the sense that we're going to apply this without any background knowledge or ability to independently assess, think, and use discretion.

So no, I don't have too much fear on that account.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Inspector, and thank you, Mr. Hunt. We've run out of time.

I would just point out that I think it was Mr. Richards, not Mr. Storseth.

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

Oh.

[The Chair, Conservative, Dave MacKenzie]

They're two different bills.

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

My head is spinning more than I thought.

[The Chair, Conservative, Dave MacKenzie]

We'll suspend for about three minutes so that we can switch panels.

Thank you very much for being part of today's testimony.

[The Chair, Conservative, Dave MacKenzie]

I call the meeting back to order.

For the information of the witnesses, I do apologize that we're running a little bit late. We had votes in the House. With the consent of both sides of the committee, we made the decision that each section will now be 45 minutes in length.

Before us today we have Mr. Paul Champ from the BC Civil Liberties Association and Mr. Lincoln Merraro from Cadillac Fairview Corporation Limited. Michael Byers is speaking as an individual by video conference.

I think you have all been advised that you do have an opportunity for an opening address. We're trying to keep them closer to five or six minutes, if we can, just because of time.

I would welcome you to go ahead in the order I have here.

Mr. Champ, if you have an opening address, please begin.

[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]

Thank you.

Mr. Merraro.