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.

On the agenda

MPs speaking

Also speaking

  • Tony Hunt  General Manager, Loss Prevention, London Drugs Limited
  • Steve Rai  Inspector in Charge, District Three, Operations Division, Vancouver Police Department
  • Paul Champ  Legal Counsel, BC Civil Liberties Association
  • Lincoln Merraro  Senior Security Manager, Cadillac Fairview Corporation Limited
  • Michael Byers  Professor and Canada Research Chair, Department of Political Science, University of British Columbia, As an Individual

12:20 p.m.


Craig Scott Toronto—Danforth, ON

My head is spinning more than I thought.

12:20 p.m.


The Chair 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.

12:23 p.m.


The Chair 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.

12:23 p.m.

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.

12:30 p.m.


The Chair Dave MacKenzie

Thank you.

Mr. Merraro.

12:30 p.m.

Lincoln Merraro Senior Security Manager, Cadillac Fairview Corporation Limited

Thank you.

In the interest of trying to keep it under five minutes, I'll go quickly, but thank you for allowing me to speak today.

I work for Cadillac Fairview. Our property is the Pacific Centre, which is located kitty-corner to the Vancouver Art Gallery, which has been mentioned several times, as well as four blocks away from the Stanley Cup riots that occurred in 2011.

I'm here to talk about the effects of that event and those types of events on our tenants. The amount of damage, the amount of glass, the number of fires has been spoken about already. What hasn't been spoken about too much is the human condition: the number of people who were terrified that night, not just by the people who were there to celebrate winning or losing, but by the people who would be at their storefront wearing a mask. I believe it's a terrifying experience, if you are a shop clerk and you are standing inside your store and there is a protest or an assembly happening outside your store, to have somebody come up in a mask and make you feel unsafe.

That night we completed 17 different incident reports, ranging from theft from auto to break and enter to graffiti to mischief. I can tell you that in each of those situations, when we had to do the video review for it we found that there was a mix of people who would be silently or aggressively egging on other people to do the act. The people who were usually doing the egging on of the people would be the ones who were wearing masks. Prior to the start of the game, and certainly by close to the end of the game, when the mood started to shift, you were able to see that there were plenty of people who were clearly prepared for what they wanted to do that night.

This essentially put that property into a safe lockdown mode, meaning that our 100 retailers who were there and their staff were forced to try to find a way home. We have six office towers connected to the Pacific Centre, and when I say that we did 17 incident reports on various things, these don't include the dozens of different times that we had to send security guards to escort either a lawyer, a banker, or a retailer from their office through the crowds to transportation to get them away from there.

Since then, with every incident we've done a review. We compiled more than 114 hours of CCTV footage. The estimated cost of damage to us and to some of our tenants, such as TD Bank, Sears, Aritzia, H&M, Blenz Coffee, AI culinary school, Holt Renfrew, Tip Top, SportChek, as examples, is over $1 million. We had one employee's car flipped over and torched while they could only stand by and watch.

To put it into perspective, the Pacific Centre covers almost four city blocks on two sides. Every single business along those two streets was affected in one way or another. Since we are across from the Vancouver Art Gallery, this also touches home for us, because we see a lot of the protests, the lawful gatherings. We're happy to see those happen.

We also unfortunately see when some of those things start to devolve. I can tell you, being an observer literally across the street, that it begins to develop by having a few people involved who wish to get into the middle of it and, as was mentioned earlier, for lack of a better word, hijack that event for their own purposes. It creates a very unsafe environment for the people who are there to lawfully protest, it creates a very unsafe environment for the people who work and live in that area, and it makes it very difficult for the message that would have started at 12 noon on a nice day with banners and chanting. By 3 o'clock that message is entirely lost, because the event has been taken over.

Thank you.

12:35 p.m.


The Chair Dave MacKenzie

Thank you, sir.

Now, Mr. Byers, appearing by video conference, if you have an opening address, please go ahead.

May 3rd, 2012 / 12:35 p.m.

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—

12:45 p.m.


The Chair Dave MacKenzie

Mr. Byers, we have to cut it off here because we are running out of time.

Could you crank it up a bit?

12:45 p.m.

Professor and Canada Research Chair, Department of Political Science, University of British Columbia, As an Individual

Prof. Michael Byers

Okay. I just need 30 seconds.

12:45 p.m.


The Chair Dave MacKenzie

That will be fine.

12:45 p.m.

Professor and Canada Research Chair, Department of Political Science, University of British Columbia, As an Individual

Prof. Michael Byers

We shouldn't be surprised that a few idiots impede traffic, break a window, or overturn a car. One does not encourage or excuse such acts by anticipating them and planning restraint; a few louts in a crowd do not justify sweeping or pre-emptive arrests.

Let me also say that there will be peaceful protesters who will worry about this legislation being used to facilitate the use of facial identification technology, not just to catalogue criminal acts—things that are already criminal under the Criminal Code—but also to track participation in political protests and the expression of dissent.

I worry that if it becomes law, this legislation will seek to deter important acts of political expression. That is something that I think all the members of this committee should consider carefully.

12:45 p.m.


The Chair Dave MacKenzie

Madame Boivin.

12:45 p.m.


Françoise Boivin Gatineau, QC

Thank you, Mr. Chair. I will share my time with Mr. Jacob.

Mr. Byers, you talked about section 35. Was that the section you were referring to? I want to make sure because there are two sections that would be amended: section 65, on riots, and section 66 on unlawful assemblies.

That said, my question is for Mr. Champ. You said that the main impact of this bill is to create tougher penalties for a person who commits an offence while wearing a mask than for a person who is just participating in a riot. Wasn't that already the case? Didn't the courts of Canada already consider being disguised an aggravating factor?

There is another question I would like Mr. Byers or Mr. Champ to answer. Wouldn't it be good to use the same terms in section 351 if we want to create a specific offence in sections 65 and 66 concerning the notion of wearing a disguise, to avoid having all sorts of interpretations of the offence of wearing a disguise in section 351 and the one newly created in sections 65 and 66?

12:45 p.m.

Legal Counsel, BC Civil Liberties Association

Paul Champ

I think the point you're making is that the law may already sufficiently deal with the issue, and I think it's an excellent point.

For example, if the criminals who looted London Drugs and some of the stores that Mr. Merraro was speaking of did so while wearing a mask, they're going to get a more severe sanction. That's already in the Criminal Code. I used to be a prosecutor. In my experience, I know that would have been a factor. Irrespective of what's in the code, I would have argued for that, and I'm certain that any judge would have put weight on that as an aggravating factor in the crime.

So the real issue is, what is the point or purpose of these provisions? I think the consequences are going to be unintended. As I think Professor Byers has set out, there's going to be a chilling effect for those who may otherwise want to attend a rally, a demonstration, or a protest and wear a mask for legitimate reasons. They are going to be deterred. Or in a case where they want to attend anonymously, they may be deterred from attending at all.