Justice Committee on May 3rd, 2012

[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.

[The Chair, Conservative, Dave MacKenzie]

Thank you, sir.

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

[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—

[The Chair, Conservative, 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?

[Prof. Michael Byers]

Okay. I just need 30 seconds.

[The Chair, Conservative, Dave MacKenzie]

That will be fine.

[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.

[The Chair, Conservative, Dave MacKenzie]

Madame Boivin.

[Françoise Boivin, NDP, 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?

[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.

[Françoise Boivin, NDP, Gatineau, QC]

Thanks.

Monsieur Jacob.

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

Hello.

Thank you, Mr. Chair.

Thank you to the witnesses for being with us this morning. My first question is for Mr. Lincoln Merraro.

If I'm not mistaken, you manage a private security company. First, what was your initial training? Then, could you tell me what type of ongoing training you and your employees have as private security agents.

[Lincoln Merraro]

I'll answer that in two ways. One is that I'm the manager for security at Pacific Centre. I'm not a licensed security guard. We employ contract security guards. The training they get is mandated by the province. They are licensed. They go through 40 hours of training, covering everything from human rights to customer service to powers of arrest. I was also—

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

So there are 40 hours of ongoing training a year?

[Lincoln Merraro]

That's the initial training.

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

Initial training? Okay. Thank you.

[Lincoln Merraro]

Yes. They can do a whole host of other training segments to augment their initial training as well.

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

So, am I to understand that they don't necessarily have, any more than you do for that matter, any training in law, on the Charter of Rights and Freedoms, on rights and freedoms of expression and association, in psychology, or other matters?

[Lincoln Merraro]

I have a diploma in law enforcement security. For the guards, part of their training is the Criminal Code and all aspects of law—not to the fullest extent, but yes, they are trained in those areas.

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

Okay. So they are trained. They have an obligation to have how many hours of training per year?

[Lincoln Merraro]

There's not a set amount of hours per year. They are licensed by the province.

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

Okay, very well. Thank you very much, Mr. Merraro.

My second question is for Mr. Champ.

You said that Bill C-309 would limit the right to freedom of expression, the right to privacy, the right to the presumption of innocence, and, I also think, the right to freedom of association.

I have a letter from the executive director of the Quebec Bar, Mr. Claude Provencher, that he sent to the sponsor of Bill C-309. The letter said the following:

We are concerned about the widely-reported case of a demonstration at Montebello in Quebec, on August 20, 2007, during which police officers, disguised agents provocateurs, tried to encourage protesters to act in a violent way that could have justified an intervention or arrests.

I would like to know what your position is regarding the Quebec Bar's fears.

[The Chair, Conservative, Dave MacKenzie]

We're way over time. A short answer, please.

[Paul Champ]

I'll give a very quick answer.

In that situation, as in 2007, it was a protest involving the presidents of the United States and Mexico and Prime Minister Harper. The provocateurs in that circumstance were actually police officers. There were Quebec police officers wearing masks, pretending to be protesters, mixing themselves into the crowd, and trying to incite other members of the crowd to start a riot and cause an escalation.

That is a concern that I didn't expand on at the end of my remarks. I was getting to it just a bit.... There are concerns out of the G-20 protests in Toronto, for example, where there was a concern that police were engaged in an excessive use of force. There have been independent reviews by the Special Investigations Unit and the Independent Police Review Director that there were many circumstances of excessive use of force.

With this new provision, I'm worried that people wearing a mask—perhaps for legitimate purposes—are going to have a big target on their backs when some unfortunate bad apples in police forces decide that it's now an unlawful assembly and it's time to start swinging billy clubs.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Woodworth.