This week, I changed much of the tech behind this site. If you see anything that looks like a bug, please let me know!

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

May 3rd, 2012 / 11:35 a.m.

Conservative

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.

11:35 a.m.

Tony Hunt General Manager, Loss Prevention, London Drugs Limited

Excellent. Thank you.

My name is Tony Hunt. I am general manager of loss prevention for London Drugs Limited. For those who are not familiar with it, London Drugs is a Canadian retailer based out of Vancouver and founded in 1945. We have stores from Victoria through to Winnipeg.

Thank you for this opportunity to comment on Bill C-309. As a security professional representing one of the many businesses impacted by the Vancouver hockey riot, I hope to share with the committee the role that masks can play and the impact these large-crowd events have on the safety of our staff and the public.

On the evening of June 15, 2011, our hallmark London Drugs store at the corner of Granville and Georgia in Vancouver was broken into and pillaged by over 300 criminals. Thirty staff watched in horror as thugs ravaged through the burglar-resistant glass and steel security gates, pounding their way into the store. The staff fled to safety in our basement room barricade, while thieves stole $450,000 worth of expensive merchandise and inflicted $224,000 in physical damage.

The property can be replaced, but the emotional trauma on our staff is just not an acceptable societal standard. In the independent review of the 2011 Vancouver Stanley Cup playoffs riot, entitled The Night the City Became a Stadium, Mr. Furlong and Mr. Keefe discovered that on the night of game seven at the main viewing area downtown, before the first goal was even scored, there had already been reports to police of a small cluster of masked men in the crowd.

The review report also determined that on the night of the riot, some individuals came downtown prepared to make trouble. To quote the report:

...some revellers came with alcohol. Others were equipped with masks, weapons, accelerants...

This report indicates that certain individuals came to this assembly with weapons for use on people and property, and masks to first obscure their identities. I have nine images I brought with me today that I can circulate to the committee, if it so pleases.

We found in reviewing our video images that a significant percentage of the suspects who entered our store during the looting either wore some type of mask or attempted to obscure their face in some way. Our estimate is that 30% of the suspects tried to use their shirts, sweaters, umbrellas, scarves, bandanas, and even a wrestling mask to hide their faces. While the motivation behind such violent and wanton disregard for the safety and the rights of others seems beyond comprehension, in viewing the images it appears obvious that many of those attacking our store covered their faces before entering the store to commit their crime.

One can only wonder if there had been an opportunity and means to deter those individuals from donning masks, if at least some of the damage and risk to life may have been avoided. The key from the victims' perspective is to prevent the crime from occurring in the first place.

London Drugs seeks to provide a safe and secure environment for our customers and our staff under all circumstances. In 2010, the national retail federation in the U.S. published a white paper on the evaluation and preparation that retailers can conduct before large events. This is generally accepted in the retail business as a best practices document. We use these and other best practices to plan for events in our communities that may put our staff or business at risk.

We regularly plan around and coexist peacefully with large gatherings on the city streets, parks, or courtyards near our stores. The overwhelming majority of protest events are peaceful, cause little disruption, and are attended by well-meaning individuals exercising their rights. When preparing for these large events, we view gatherings attended by those in masks to be extremely high-risk events, requiring additional preparation, anxiety, and expense.

It has been my experience in observing protests that often groups wishing to stage a protest indicate that masks are not welcome due to the potential for causing trouble or devolving the situation. I was present when this comment was made during the Occupy protests in Vancouver several months ago, and this week the same comments were attributed by the media to protesters in Quebec City.

It is important to note that the issue of masks encouraging criminal behaviour goes beyond protests. There is a very real threat to retail businesses that security professionals refer to as multiple-offender crimes. These are different from flash mobs, which are generally involved in a fun-loving and spontaneous prank. Multiple-offender crimes are events in which individuals attend a location and under the cover of a prank or spontaneous gathering, and often with the power of social media to organize and amass for anonymity, commit large-scale grab-and-run thefts or vandalism while putting staff and customers in danger. These events are of growing concern in the U.S. The ability to freely obscure one's identity while appearing in a flash-mob atmosphere simply increases the chance of escalation to criminal behaviour.

All of us realize that our technology and our communications have changed. With the proliferation of video and mobile phone cameras, there is a vested interest for those who wish to act in a criminal and unsafe manner to remain anonymous by wearing a mask. Providing our police with a tool to intercede at a more preliminary stage of an event may prevent violence by removing the anonymity currently enjoyed by those who create mayhem.

The lawful excuse provisions of the bill recognize and protect those who have lawful reason to wear head coverings, or have other lawful excuse for obscuring their face. As a company we are respectful of cultural diversity and believe these provisions to be vital for the bill to be successful in protecting our customers and staff while respecting those same individual rights and observances.

For the safety of our staff, the public, and for those who wish to exercise their rights to protest in a lawful and peaceful manner, we encourage the acceptance of the bill, providing the provisions of lawful excuse are retained.

Thank you.

11:45 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Mr. Hunt.

Inspector Rai, do you have an opening address? If you do, please go ahead.

11:45 a.m.

Insp Steve Rai Inspector in Charge, District Three, Operations Division, Vancouver Police Department

Thank you, and good morning.

I am very pleased to be provided the opportunity to speak with you today about my experiences as a public order commander for the Vancouver Police Department. I have been a law enforcement officer for 22 years. I have been a public order commander for five years as one of my roles with the Vancouver Police Department. I was one of the public order commanders for the duration of the 2010 Olympics, including the opening and closing ceremonies, the gold medal hockey game, the Stanley Cup playoffs last year, including being the north commander for the night of the riot. I have led public order responses for many social and political demonstrations throughout the city of Vancouver.

The Vancouver Police Department unequivocally vows to uphold the Canadian Charter of Rights and Freedoms, and we recognize and respect the fact that the Canadian Charter of Rights and Freedoms guarantees the freedom of thought, belief, opinion, expression, and peaceful assembly, and that peaceful assembly also refers to peaceful protests. It has become evident that a relatively small portion of people who take part in peaceful assemblies and protests employ a tactic of concealing their identity by wearing disguises, masks, or other facial coverings for the purpose of committing unlawful acts. Part of this tactic is to blend in with the larger group of peaceful protestors or assemblers, commit unlawful acts, and then remove their disguises, masks, or facial coverings, thus endangering the peaceful protestors. This occurred in Vancouver during protests that took place on February 13 and 14 at the Heart Attack march regarding the Vancouver 2010 Olympic games, and during the June 15 Stanley Cup riot.

Democratic governments in the United Kingdom, France, and New York State have developed legislation that would either limit or prohibit the wearing of disguises, masks, or facial coverings during peaceful assemblies. The VPD supports amending the Criminal Code of Canada or developing alternative legislation to limit or prohibit the wearing of disguises, masks, or facial coverings whose purpose is to conceal the identity of a person intent on committing unlawful acts prior to, during, or immediately after a lawful assembly or protest.

Reasonable limits to any such amendment or new legislation need to be considered. It is not our intent to infringe upon protesters' charter rights regarding wearing facial coverings at a protest where it is reasonable that wearing the facial covering is an important symbol during the lawful protest. For example, we are not suggesting that medical professionals could not wear surgical coverings if they were to protest, or if during a political protest people wore masks that were caricatures of the leaders or governments they were protesting. Rather, we are focusing on those elements of protesters that fundamentally infiltrate the larger, peaceful protest, wear facial coverings, proceed to commit their unlawful acts, and then quickly remove them and use the larger, peaceful protesters as a form of human shield. This is the behaviour that we recommend be legislated against.

To summarize, a legislative amendment prohibiting the wearing of disguises, masks, or other facial coverings for the purpose of concealing identity would assist police in identifying members of protests who engage in unlawful behaviour. Other jurisdictions have similar legislation in place for precisely this purpose. An amendment to the Criminal Code will limit or prohibit the wearing of disguises, masks, or other facial coverings during lawful assemblies while enhancing the safety of police officers and the peaceful protesters.

Thank you.

11:45 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Inspector.

We now begin our five-minute rounds.

Madame Boivin.

11:45 a.m.

NDP

Françoise Boivin NDP Gatineau, QC

Thank you, Mr. Chair.

Thank you to the witnesses for being here today.

I think everyone sympathizes with you, given the events you had to deal with. Whether it is police forces or business people who experience these riots, it is never pleasant. A number of years ago, when I was participating in a lawyers' convention in Quebec City, we were caught up in a Saint-Jean-Baptiste demonstration. It was supposed to be a celebration, but it turned into a riot. Nothing is more stressful than being caught in the middle of something like that. It isn't funny either for those who participate in the gathering totally peacefully.

The issue we have now is determining whether the bill from our Conservative colleague, Mr. Richards, and the amendment he is proposing to the Criminal Code, will really allow us to achieve the goal being sought. We are all in favour of virtue. We would all like to be able to arrest those who are ill-intentioned in a crowd and take them out before the trouble starts.

The problem is that very often, until the trouble starts, these people are difficult to identify. You both recognize the right people have to participate in a peaceful assembly, no matter the way they express themselves, whether they have a scarf on their face or not. In fact, the scarf is not the problem; it's what the person wants to do with the scarf that is problematic. I think we agree on that.

My question is for Mr. Rai. Do you not already have enough power? We haven't talked about it yet, but section 31 of the Criminal Code can be used. If police have reasonable suspicion that someone is ill-intentioned, they can arrest that person beforehand. If that is not done, it might be because they have to wait until something illegal happens, they have to wait until the person commits the offence. It practically becomes a catch-22 situation. I don't see how the amendment proposed by the bill can give you the tools you need.

11:50 a.m.

Inspector in Charge, District Three, Operations Division, Vancouver Police Department

Insp Steve Rai

Thank you.

I'll speak from the perspective of being an on-the-ground public order commander.

I understand that there are avenues in the Criminal Code that touch on wearing a disguise while committing an indictable offence. I'm not a legal expert, but I know that the threshold is higher when you're wearing a disguise when committing an indictable offence under the Criminal Code. The threshold is much higher.

What we're looking at is the safety of people who want to come down and protest, bring their children to show them how to express themselves on a position they feel strongly about, and not be hijacked by a small cluster of people who are bent on wearing facial coverings to either intimidate a point of view or hijack the event for their own ends. As a police officer, as an on-the-ground commander, I don't have the tools to expediently, concisely, and surgically go in and have the strength of a tool to mitigate and diffuse that path towards taking that protest in a different direction. We see that now more and more.

11:50 a.m.

NDP

Françoise Boivin NDP Gatineau, QC

That's my question. How will the amendment give you better tools? Unless you find the person actually rioting, using concealment, what would you do differently with the amendment that you can't do right now? How will it permit you to do something different?

11:50 a.m.

Inspector in Charge, District Three, Operations Division, Vancouver Police Department

Insp Steve Rai

Suppose people show up with backpacks—and we see this all the time—with gas masks, handkerchiefs, and different items. They are people who are known to us. They infiltrate a crowd and hide in it. As soon as they are masking up, or if we search their backpacks, we can have a much stronger response if we have a law that's specific to that, rather than our going to a riot or going to an unlawful assembly.... We're looking for tools that help us prevent and mitigate before that line is cut.

11:50 a.m.

NDP

Françoise Boivin NDP Gatineau, QC

Article 31 of the Criminal Code permits you to do that if you see a manifestant in a crowd. He's got a mask. He's got a backpack. You suspect...you have reasonable grounds. I cannot believe anybody would think you do not have reasonable grounds. You go to Disney and they open your bags to make sure you're not bringing anything in. I believe you have the tools.

What complicates things is the size of crowds. Suddenly these guys are well hidden. We turn in circles, because I don't see how the new legislation will permit you to do more than what you already can do under the Criminal Code. It's almost an impossibility, unless you just say you don't accept anybody with a mask or a disguise in any crowd. That would be the best way to do it, wouldn't it?

11:55 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Go ahead.

11:55 a.m.

Inspector in Charge, District Three, Operations Division, Vancouver Police Department

Insp Steve Rai

Let's look at the most recent example of the Vancouver riot. We have a huge crowd there, 100,000 or 150,000. Some people we impeded before the riot began, but many people we didn't, because the crowds were so large. What has this cost our department and the local citizenry, including London Drugs and the business community? Investigations have run into the millions because we have had to electronically unmask people who were masked up during that assembly.

The power to tell people they can't mask up because there is a law, with fines and penalties, operates as a deterrent. Instead, we're looking at millions of dollars of investigations, millions of dollars in damages, and the subversion of police resources that we should be spending on other criminal activity. This law, which sets forth responsibilities at the onset of a public assembly, will help the police in a number of tasks.

11:55 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Inspector.

Mr. Goguen.

11:55 a.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

Thank you, Mr. Chair, and my thanks to the witnesses for appearing today.

Inspector Rai, I think you've struck upon one of the stronger points of the legislation—deterrence. You'll never stop everyone from wearing a mask if people set their mind to it. But deterrence is an arm that the police have to be able to use. You were on the ground the day of the riots, so I'd like to canvass some of the mayhem that fell out of this.

Were private citizens, innocent bystanders, assaulted in these Vancouver riots? Are you aware of that?

11:55 a.m.

Inspector in Charge, District Three, Operations Division, Vancouver Police Department

Insp Steve Rai

Yes, we had 40 to 45 reported assaults, and half of them were on police officers. There are many stories about the riots. Some people called the police after they were assaulted; some didn't. I'm just telling you the ones that were reported. A mob of 15 rioters attacked one person. People were pepper-sprayed, kicked, punched. We had sexual assaults against women. This was two riots in one. The entire downtown core was covered with hooligans, alcohol-fueled. There were many more assaults than the number I just mentioned, but those are the ones that were reported to us.

11:55 a.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

I guess it would go without saying that a number of businesses were shut down. There were damages. Were any of the employees affected by this riot?

11:55 a.m.

Inspector in Charge, District Three, Operations Division, Vancouver Police Department

Insp Steve Rai

Some employees had to lock themselves in back rooms or security rooms, and some of them remain traumatized to this day. We had a famous store that blends coffee near the heart of the riot, and this poor victim had to lock herself in while she heard a mob outside attacking and destroying her business. These kinds of things happened throughout the downtown core during that riot. It affected people's lives. You pour a lot into your business—blood, sweat, and tears. Yes, a lot of businesses were affected.

11:55 a.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

I wonder, had this existed at the time, how it would have helped you to deter or to stop...and you did comment on this topic for de-escalating the riots. What kind of additional arm would this have been? Ms. Boivin sort of alluded to that.

11:55 a.m.

Inspector in Charge, District Three, Operations Division, Vancouver Police Department

Insp Steve Rai

I'm speaking from my experience as a public order commander. When you have a crowd on the ground and you're trying to ensure the safety of the crowd, and the point you're trying to make is respected and you amend your tactics according to the crowd, which is a peaceful crowd, you give them more street room. You give them an extension on time. You work with the crowd, because we're here to facilitate that in our country.

Where this amendment or tool would have come in handy is when, as a public order commander, you're making decisions on tactics and you see a large number of people with backpacks, and maybe some of the people have had their backpacks searched and masks have come out and disguises have come out. Now you're thinking, okay, the crowd is being infiltrated by another element. Then as the riot or assembly moves forward and the troublemakers, if I can call them that, start to take more ownership of the larger crowd, that's where I, as a public order commander or a police leader, can come in and make a decision and have the tool behind me that I can surgically remove people. I can also have the education, the pre-awareness to the event. People know what they're doing. The people know they're covering their faces for an intent. The Black Bloc is not a group; it's a tactic.

When you have the full weight of the Criminal Code, and it's clearly articulated and the police officer knows that clearly and he can articulate that on the ground, those are all subtle nuances and strengths that help you mitigate an event like a riot.

Noon

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Mr. Goguen.

Mr. Cotler.

Noon

Liberal

Irwin Cotler Liberal Mount Royal, QC

Thank you, Mr. Chairman.

I'd like to put a question at this point to Mr. Rai following from his testimony. Your testimony, Mr. Rai, began with an important affirmation of freedom of expression, association, and assembly, anchoring it in the Charter of Rights and Freedoms, and then spoke about the situation of small groups who endanger peaceful protest and the like.

This initiative is not unlike what other countries are doing, but my sense is if you look at our legislative framework, you will see it is what other countries are doing without this specific initiative. We have a whole set of provisions that can deal with these issues now, whether we're talking about provisions about unlawful assembly in section 63 of the Criminal Code, or with respect to section 67 and the proclamation of a riot, or with respect to section 30, an arrest for breach of an offence, or section 30 where it also speaks to the suppression of a riot. The most important thing—and this brings me to the whole issue here—is subsection 351(2) of the code, which sets out the offence of disguise with intent and where it reads:

(2) 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

We have the legislation and enabling authority right now. Is it not more a question of the efficacy of law enforcement rather than the absence of law? I'm concerned about this trend of the over-criminalization in the Criminal Code and responding to specific incidents, such as what occurred with the Stanley Cup, with yet another law, rather than asking whether the legal system in place was already sufficient for that purpose and whether it is like that which exists in other countries.

Noon

Inspector in Charge, District Three, Operations Division, Vancouver Police Department

Insp Steve Rai

I'm not a legal expert, by any means, but I can tell you the law with the last one you mentioned, subsection 351(2). That is applied by police officers on...if somebody is robbing a bank—they go in and rob a bank with a balaclava on, they run out of the bank, and you catch them—it's a single case; it's manageable.

We're talking about the ability to have large groups of people not hijacked by a small group of people who are wearing intimidating facial masks and are employing a known tactic. A Black Bloc is a tactic that's used worldwide by groups to hijack public assemblies. I don't mean to lecture or anything, but in the Charter of Rights, the larger group also has a right to bring their children down, bring their grandmothers down, bring people down to make a statement, I don't know, at the footsteps of an art gallery or city hall, without being intimidated by a small cluster employing Black Bloc tactics.

I don't think that other section is easily applicable from a policing-on-the-ground perspective when you have thousands of people.

12:05 p.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

I just want to say that the courts have already used the existing legislation, including section 718.2 of the Criminal Code, to determine that the wearing of a mask can imply violence, intimidate victims, demonstrate planning, etc. In other words, the courts seem to have found in the existing legislation that which is necessary for the purposes of sanctioning the very conduct that we are all concerned about. That's why I go back to the question. Is it not more a question of the efficacy of law enforcement and the application of the law rather than the absence of an enabling authority to begin with?

12:05 p.m.

Inspector in Charge, District Three, Operations Division, Vancouver Police Department

Insp Steve Rai

Again, I can say that the courts.... I don't have the wherewithal to have all the knowledge on how the courts have applied it and how they've sanctioned people who have been in violation of that.

What I can tell you is that that particular law is fine when the person gets to court. It's the ability to utilize that in a preventative purpose from law enforcement's perspective. Do I use that tool? Can I use that tool when I have 150,000 people? Is that going to help me mitigate damage in the millions to the downtown core of a Canadian city? Not at that moment. Certainly, afterwards it can be applied and the courts can provide remedy and sanction people. But I'm saying, from my perspective as a law enforcement officer, that it currently is not working for me on the ground.

12:05 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Ms. Findlay.