Justice Committee on May 8th, 2012

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

I'd like to bring Professor Stribopoulos back in on two quick points.

Professor Stribopoulos, at one point Mr. Webb referred to the situation of when someone is “just standing and wearing a mask” after a riot or an unlawful assembly has been declared, that criminalizes them under this provision. Do you have any problems with the notion that simply by your being in the middle of a riot or an unlawful assembly, this provision would catch you? That's the first question.

Secondly, let me quote something from another police officer and ask you what you think about this. This is Chief Constable Graham of Victoria:

The challenge with this offence is that it demands an almost unattainable standard for effective, proactive policing. It requires the crown to prove the intention to commit one or more specific indictable offences. Although that would allow for the arrest of a masked person who participates in a riot once it has started,

--so he's already conceding that section 351 is adequate--

it does very little to prevent the riot from occurring in the first place. In contrast, Bill C-309, by creating a specific offence for wearing a mask while taking part in a riot or unlawful assembly, could allow for a pre-emptive arrest under the “about to commit” sections of the Criminal Code when an agitator “masks up”, as we call it. This would help provide proactive arrest authority to remove these instigators before things get out of control.

Do you understand that language as allowing for pre-emptive arrests triggered by this proposed amendment?

[James Stribopoulos]

I'm really troubled that the quoted passage and what the witness has already said could lead to that conclusion. If this is the way it's being read by police, it's really disconcerting.

[Craig Scott, NDP, Toronto—Danforth, ON]

It is indeed the way it's being read, presented, and talked about.

[James Stribopoulos]

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.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Professor Stribopoulos.

I will now just throw it to Mr. Webb to give him a chance to possibly clarify.

When you did say, Mr. Webb, that when someone is just standing wearing a mask after a riot or an unlawful assembly has been declared, did you really mean that that would be covered by this provision?

[Patrick Webb]

Theoretically, it is covered by that provision.

[Craig Scott, NDP, Toronto—Danforth, ON]

So theoretically, you're relying entirely on discretion as the way to get out of this theoretical criminality.

[Patrick Webb]

Discretion is relied upon by policing everywhere, every time.

[Craig Scott, NDP, Toronto—Danforth, ON]

Sure, but we don't normally criminalize and rely on discretion to keep people non-criminals who shouldn't be considered criminal.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Go ahead, Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you.

I find the last exchange completely puzzling, because, among other things, the bill we're considering does not simply apply to riots or to participation in a riot; it applies to being a member of an unlawful assembly. And if one is a member of an unlawful assembly and masked, then the act imposes a prohibition. There are reasons for that, and there is nothing untoward about it.

I'd like to begin with Mr. Stribopoulos. I have a question for you, Mr. Stribopoulos, if you've managed to regain control of yourself again. I know you were a bit passionate a moment ago.

Regarding subsection 351(2), do you agree with me that in order to be found guilty of that offence, the disguise in question must be donned with the intention of committing an indictable offence?

[James Stribopoulos]

Yes, for sure, and if you try to create an offence that doesn't have a mens rea requirement—

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I'm going to ask for your commentary on other matters in a moment, but for now I just want to make sure that we are in agreement that it is what is required under section 351.

[James Stribopoulos]

I agree with you, for sure, sir, most definitely.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Under the new act, would you agree with me that simply refusing or failing to remove a mask—whatever intent you had when you donned it—while participating in a riot or being part of an unlawful assembly is the only intentional act required?

[James Stribopoulos]

Unfortunately, the way proposed subsection 65(2) is drafted, you'll notice that it doesn't include any express mens rea language.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Just wearing the mask or refusing or neglecting to remove it is the only intentional act, if I can put it that way, while participating in a riot or being part of an unlawful assembly. That's the only intent required. Is that correct?

[James Stribopoulos]

No, sir, I can't agree with you. Unfortunately, the language you're adding isn't apparent on the face of the enactment. It says nothing about an obligation on someone when directed to remove a mask.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

No, I haven't been talking about being directed to remove a mask. I'm simply saying that if you find yourself in an unlawful assembly and you do not remove your mask, you will potentially be found guilty under the new act. Isn't that correct?

[James Stribopoulos]

I'm sorry, just please clarify. When you say you find yourself in an unlawful assembly, how is it that you know that the assembly is unlawful? Is it because you've been told?

You see, in an unlawful assembly, there are certain elements that need to be satisfied in order for there to be an unlawful assembly. The fact that the police happen to be troubled by the presence of a collection of protesters doesn't make the assembly unlawful. It has to have gotten to the point where it's disturbing the peace tumultuously. That language, as you find it in the code, has been read by the courts as requiring something—

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Let me stop you there for just a moment. What I'm getting at here is that the heavy intent requirement, the specific intent requirement, of subsection 351(2) is not found in the bill before us. Is that correct?

[James Stribopoulos]

It would be read in, though, by the courts. You can't have a criminal offence without a mens rea requirement. That's the point I was trying to make before.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

On that point, I guess we will have to agree to disagree, because I don't think the court needs to read in a specific intent to commit a criminal offence, any more than one would have to read in a heavier intent on the possession of stolen property charge.

I thought you had rather a good point when you compared this offence to the analogous situation of theft and possession, and you pointed out that indeed theft and possession both have some elements in common. One could not be convicted of both theft and possession of the same item. Yet you're not suggesting, because of that and because of the potential delay or double-charging or over-charging that would occur, that we should abolish the offence of possession of stolen property, are you?

[James Stribopoulos]

No, of course not, sir. But I have to say, I'm a law professor who teaches future lawyers about criminal law. I teach them about the established principles. The courts have made it crystal clear—our Supreme Court has—that no criminal offence can operate without a mental requirement. It can vary in its requirements, to be sure—

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I agree.