Thank you, Mr. Chair.
I'd also like to speak to our proposed amendment and ask that our colleagues on the committee consider seriously what the amendment is trying to do. It is trying to go to the very core of the examples we kept hearing from the witnesses about the real concerns that need to be addressed: the kinds of groups, the criminals who arrive, and people who are already arriving with criminal intent to engage in the kinds of tactics that several of the police witnesses described to us. In order to achieve that, we believe, frankly, that the existing provision is adequate.
Part of the problem is simply the problem of police enforcement, as our colleague Irwin Cotler spoke to last session. It's not at all clear if we're going to get very far beyond that and still stay true to the principles of both the Constitution and the general principles of criminal law, where intentionality is extremely important.
That being said, we're willing to move a little bit and accept that by moving our amendment on unlawful assembly there is some room for a mask or disguise provision that touches on non-indictable contexts. So please see our amendment not at all as obstructionism, but rather an attempt to get to where the concern seems to be from the witnesses who were called.
That being said, I am a bit concerned that we have a ships-passing-in-the-night problem in terms of at least some members of the committee and a couple of the witnesses—I think in particular of Chief Constable Graham—who have a very different idea of what these words should mean. They've been reading them in a way that just is not at all supported by the text of Mr. Richards' bill.
My concern is that if, after studying a bill with so few provisions, police officers are coming and referring to different things that this will allow them to do as tools, and which seem to go well beyond the text, we have real reason for concern. A refocus on intentionality as being at the centre of our criminal law is really needed.
Let me start now with a quick point on overbreadth. Mr. Richards, at one point in his presentation, said the following:
This legislation is clearly designed to deal with a criminal element who would try to take advantage of a large public gathering of some type in order to cause mischief, mayhem, and damage.
We heard quite a few references to the Black Bloc and to violence. This kind of activity is really what everybody is concerned about.
My concern is that this is not clearly designed to achieve that, especially when we add the kinds of interpretations we've been hearing. It is not well written at all to get after those elements, except with overly broad provisions. I'm going to, on a few occasions, explain the kinds of dangerous situations that will arise, or problematic situations that will arise to show that overbreadth.
Perhaps one of my biggest concerns, as presented by a couple of the witnesses and very close to this by Mr. Woodworth in his questioning, is that we're looking at something that's closer to a strict liability offence, in the way it's being interpreted, than to a traditional Criminal Code offence. At one point Mr. Richards said the following, referring to a riot or an unlawful assembly having been declared by the police: “That situation is declared and at that point it becomes illegal to be wearing a disguise.”
We also heard from today's witness, Mr. Webb, about where someone is “just standing wearing a mask”, the act becomes criminal and at that point it's a matter of discretionary policing to make sure that people who shouldn't be charged are not charged.
The thing is that's not substantiated by the text of Bill C-309, yet it's what is constantly being presented as what this actually means.
Mr. Richards' amendment to the Criminal Code has two elements that clearly imply serious intentionality standards. If it were to pass, I would ask the legal profession and the courts to come back to our discussions and understand that not all of us agree with the interpretations we've been hearing.
First of all, there is a prefatory clause saying “Every person who commits an offence under subsection (1)”. We already know that the case law makes it extremely clear that subjective elements are part of being chargeable as a member of a riot or an unlawful assembly. So that's the first intentionality.
The second one is the following. Mr. Woodworth kept focusing on the fact of wearing the mask, the intent to wear the mask, as being the intentional element. Well, that's not at all what this says. It says “wearing a mask or other disguise to conceal their identity”. So there's a form of specific intent written into this. In French it's even clearer. This should have been written with something like “with the purpose of concealing their identity”. In French it says,
“dans le but de dissimuler son identité”.
So there are two clearly written intentional elements to this that keep getting glossed over in some of the justifications for this provision. The fact that these justifications are being made despite this clarity of language causes me great concern.
I think the chill problem is a real one. I know that members opposite maybe think it's being overblown. I think it's really important that we recognize that all the police witnesses are completely committed to the values underlying our free and democratic society--the right of freedom of expression and the right of free assembly making it possible, as one of the witnesses said, for families to come and demonstrate. This was one of his concerns. All of that's a given. But there is a chill problem in the sense that if it's applied in the way the police want to apply it, for it to be effective it will actually have to chill the wearing of masks by everyone, and not just the criminal element they've been focusing on as being the core concern.
Mr. Richards said the following in his presentation: “Obviously, when someone has to think twice about facing penalties for being disguised, they'll think twice about being disguised...”. He then went on to talk about engaging in the criminal acts that are the concern. That logic applies to everybody.
I can tell you right now that without an educational campaign and without factoring out the kinds of interpretations that we've been hearing from members such as Mr. Woodworth, the average citizen is going to think that the moment they are standing in the middle of a situation that's been declared a riot or an unlawful assembly, they are now engaging in criminal behaviour. What do you think that will do to people's willingness to actually wear a mask as part of their expressive activity? I think it will have a chilling effect. Absent an educational campaign that actually makes clear that Mr. Woodworth's interpretations are erroneous, then we have a serious problem of a chilling effect.
I'd also like to speak to this reliance on discretion. It is true, of course, that police and prosecutorial discretion is central to the way a healthy criminal justice system has to work. But we don't plan on discretion as being the way, for the majority of cases, for criminal law not to apply. Given the kinds of examples given by Mr. Woodworth and the last witness, of just being in the middle of a riot or an unlawful assembly being criminal if you're wearing a mask and you haven't taken it off, then the idea of saying yes, you're theoretically criminal, but rely on us, the police, is not the way to build a criminal justice system. It's not something that our traditions, especially as informed by the charter, easily accept. So this reliance on discretion has been overdone, I believe, and we have to make sure that a provision designed to achieve certain results is actually written in a way to achieve the results, at least in a way that the folks supporting it are all onside with what it means.
In the interest of time, I think it also is important to note that the words “tool” and “tool kit” have been used a lot in the testimony, that this would give the police a tool. Sure, but some of the examples of what that tool will allow them to do have been worrying.
I read out earlier the quotation from Chief Constable Graham, where he clearly thinks that once this passes he'll now be able to do something he couldn't do before, which is preventatively arresting people before a riot or an unlawful assembly starts, on the basis of the provision. He may well be right, interpretatively. If it turned out to be a crime to participate in a riot with a mask, then maybe there are preventative things you can do.
The point is that we can't hide the fact that the police want this for preventative reasons.
