Yes, well, I'm troubled by that, Mr. Scott.
Section 65 says that it's an offence to take part in a riot. That actually requires active participation, being engaged in a riot. Simply standing by as other people are engaged in a riot is not an offence. It's only an offence if the riot act is read, and those distinctions have been blurred by the other witness.
The riot act can be read at a certain point, and then that would obligate people to disperse. But that's not a precondition to a riot. A riot can take place without the riot act being read.
Someone is guilty of an offence if they take part in a riot. They have to actively engage in the violence and the tumult. Simply passively acquiescing, being on the perimeter because one is a lawful protester engaged in legitimate political dissent, doesn't make one guilty of a crime.
If this provision could be read so that a Muslim woman wearing a face covering at a public gathering that becomes violent on the part of a small cluster or clutch of anarchist protesters could be swept up and arrested, I'm really troubled by that. I fear that's the way this provision is being construed by its proponents.
We do not require a provision to allow the police to arrest masked rioters. Subsection 351(2) does that. The only reason that there have been simply two arrested from the Vancouver riot for that offence is that once you put on a mask, it's hard to figure out who you are. It's not a question of the law not creating the requisite offence. It's there in subsection 351(2). It's an enforcement problem, figuring out who the people are behind the masks.
This doesn't change that. We have what we need in terms of the legal tools. Why are we going to clutter the Criminal Code further with unnecessary offences? This document has grown and grown and grown. One of the biggest challenges for the people involved in the enforcement of the criminal law is figuring out which provision to charge, how to navigate the labyrinth. You're suggesting adding needlessly to the labyrinth.
I just don't understand, frankly. I apologize if I'm becoming emotional, but as a law professor, it's very frustrating to think that those who have the power to change the code in a constructive way ignore the reams of paper that are on the shelf in the Law Reform Commission of Canada from the 1980s to address real problems with this document that academics and experts have been studying for years and pronouncing about in their scholarship and in the Law Reform Commission reports. Instead we end up with this draft bill that tries to solve a problem that doesn't exist.