Evidence of meeting #34 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was masks.
A recording is available from Parliament.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Thank you very much, Mr. Chair.
My thanks to the witnesses for your evidence. It's always thought-provoking at this committee, and yours was no exception.
I would like to begin with Mr. Champ.
You are, I assume, aware that a great many of the protesters during the Vancouver riots were masked. Are you aware of that?
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Are you aware that in fact all charges that the police wish to lay in British Columbia must be approved by prosecutors?
Legal Counsel, BC Civil Liberties Association
I'm not aware of that specifically, but I know that's the practice in some provinces, that the prosecutors must approve the charges.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Let me just say that it's my understanding that this is what happens in British Columbia.
Are you aware that of the 226 approved charges arising out of the Vancouver riot, there were only two charges under subsection 351(2) of wearing a mask with intent to commit an indictable offence? Are you aware of that?
Legal Counsel, BC Civil Liberties Association
Well, that's what I'd heard, but that doesn't surprise me entirely.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
All right. That's good, because I want to ask you, as a former prosecutor, why you think it is that the police were only able to lay two charges under subsection 351(2) in the case of the Vancouver riots, where there were so many people walking around with masks on committing offences. What's the barrier there that prevented them?
Legal Counsel, BC Civil Liberties Association
It's obviously identifying the criminal, there is no question. But this bill is not going to change that. If someone is wearing a mask—
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Just a moment. I'm not asking you about this bill; I'm asking you about section 351.
So your answer is that the reason is identifying criminals.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Suppose I suggested to you that one of the reasons why there are so few approved charges under section 351 is the high bar set by the requirement to prove a specific intent to commit an indictable offence.
Legal Counsel, BC Civil Liberties Association
Again, I didn't review the files. I don't have the criminal files. I would have thought it would have been the difficulty in identifying people. As I understand it, most or many of the people identified as committing offences during the Stanley Cup riots were due to cameras and whatnot. Obviously it would be difficult to identify those people if they were wearing masks.
I don't think it's an intent issue, but again, I'd have to see the specific fact pattern on what the person had done.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
As a former prosecutor, then, you think it's an easy thing to prove that someone has the specific intent of committing an indictable offence.
Legal Counsel, BC Civil Liberties Association
Well, I think that's the problem with this particular bill rather than what's happened with the section you spoke about, because—
Conservative
Legal Counsel, BC Civil Liberties Association
As I understand section 351, once you've proved the intent to commit the other indictable offence—for example, theft of $5,000 or over—
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Right. That's what I'm talking about. Is it easy to prove that intent?
Legal Counsel, BC Civil Liberties Association
If you catch someone in a store where the glass is broken and they're holding a big computer or stereo—
Legal Counsel, BC Civil Liberties Association
—I think you can probably prove intent on that.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
But if they're just standing in the middle of an unlawful assembly, it's a little difficult.
Legal Counsel, BC Civil Liberties Association
Precisely. That's the point I'm trying to make.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
Exactly. And that's the point I'm trying to make too.
Legal Counsel, BC Civil Liberties Association
I think we're on the same page on that.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
We're on the same page here. Section 351 isn't really an easy section to apply to someone who's just standing in the middle of an unlawful assembly with a mask on. That's the point we've agreed upon.
I want to ask you about something else, and that is mens rea. What I know about criminal law is that it is generally the case that to be convicted of a criminal offence, one requires some criminal intent.
Can you give me any citation for the proposition, which I think I've heard you and others provide, that it is possible to be convicted of being in an unlawful assembly with the court finding that you didn't know you were in an unlawful assembly and you weren't wilfully blind about it? Is there a citation that says you can be convicted for simply the act of being present in an unlawful assembly without any criminal intention associated with knowing you were in an unlawful assembly?