That's great. Thank you very much.
Good morning, and thank you for this opportunity to appear before the committee, especially for the accommodation to appear by video conference. I very much appreciate it.
I'm very pleased to be with you this morning to speak to you about concerns I have regarding the proposed legislation, Bill C-309. Let me begin by saying that I understand the motivation behind this legislation very well, and it is commendable. The concern that drives the proposal is undoubtedly the result of what we witnessed here in Toronto, for example, not so recently, but we've witnessed it on other occasions as well, where violence erupts in a public gathering, public order is called into question, and individuals who are bent on engaging in criminal acts of vandalism or violence directed at people or property employ a disguise or a covering to conceal their identity from view so they can act with impunity.
I obviously share the view that I'm sure is shared by most members of the committee that this is something that's completely unacceptable in a free and democratic society and something we should collectively deplore. Thankfully, however, I think we already do.
This is why I have concerns about proposed Bill C-309. In essence, it is this: this is a solution in search of a problem. There is no deficiency in the law that this proposed legislation needs to fix. I'm specifically making reference to an existing provision in the Criminal Code, which is routinely charged, and that is a provision found in subsection 351.(2) of the Criminal Code that makes it an offence, and I quote now directly from the relevant and existing section of the code:
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 and liable to imprisonment for a term not exceeding ten years.
So there is already an offence that can be charged if someone is participating in a riot and covers their face with the intention of facilitating that participation. There is already an existing criminal offence that can be charged to get at that conduct. It's already unlawful. There is already this tool in place for the police to employ when confronted by those participating in a riot or violent tumult, as has been described in the case law, to charge those who cover their faces for the purposes of concealing their identities so they can act with anonymity in engaging in wanton damage of property and acts of violence.
Frankly, therefore, I don't see the need for the proposed amendment to the code. I also fear, and you might say in response, “Oh, what's the harm of adding a provision that's situated more closely to the riot provision and would become a subsection under section 65 so that you'd look at the one and look at the other.“ There are a number of problems with doing that. First, it creates confusion for the police officer in the field as to which offence to charge. There now appear to be two that would be relevant to the conduct they're dealing with. Police officers, not being lawyers, are rightly cautious, and they will tend, when there's more than one offence available, to charge them both. They'll err on the side of caution. They'll overcharge, in the words of commentators who are concerned about that very phenomenon and the impact it has on the criminal process.
Overcharging is something that does result in needless delay as participants come to terms with what ultimately should be the right charge and what offence the accused should plead guilty to or be found guilty of. At the end of a trial, for example, a jury or a judge would return a verdict of guilty for both offences, but then there would be a need for argument regarding the overlap, and the one offence would be judicially stayed. There's established case law; you can't essentially be convicted of the same offence twice. That's double jeopardy, and this would essentially be the same offence.
A common example is when the police sometimes charge theft and also charge possession of property obtained by crime for the very same theft. Obviously, the moment you steal something you possess property obtained by crime. Those two charges can't be sustained to completion. They overlap, and the Supreme Court has indicated as a result that one of the offences has to be stayed.
Why add complication to the code in this way? I would suggest you shouldn't, that we have a law in place to deal with this very kind of conduct, which I agree should be criminal, and thankfully it is.
I do have concerns as well in terms of the wording. I'm getting to my second reason for being concerned about the proposal, the wording of proposed subsection 65(2), versus what we already have in subsection 351(2).
Subsection 351(2) uses express mens rea language. I'm sure you're familiar with what that term means. It's the mental requirement for criminal offences, and it requires expressly that the person donned the mask with the intention of committing an indictable offence. That mental requirement is an important check on the scope and the breadth of the provision. It makes sure, for example, that only in situations where the person's purpose is truly to conceal their identity to facilitate the crime will their conduct be criminalized.
I worry that subsection 65(2) doesn't contain similar mens rea language, and that the language as proposed, “while wearing a mask or other disguise to conceal their identity”, doesn't tie the unlawful purpose back to that action. You can imagine all sorts of circumstances where people are participating in public protests, demonstrations, where they might wear some kind of face-covering or a costume. A very common example of course are sports fans who wear paper bags over their heads in shame. Living in Toronto, I am rather sympathetic to that phenomenon. That's a pretty benign example, but obviously right across the board when you move into the public realm for the purpose of political dissent people sometimes cover their mouths, they tape their mouths, they do all sorts of things as a form of expression that is constitutionally protected by the charter. Section 2 of the charter protects our fundamental freedoms, including the fundamental right to freedom of expression, to peaceful assembly. I worry that an overly broad provision could have a chilling effect and dissuade people who were engaged in legitimate public protests and who have no desire to engage in acts of violence from employing all the tools in the rhetorical arsenal by, for example, donning costumes and the like for the purposes of making their expressive point.
I do worry about the language being a little bit too fluid, a little bit too ambiguous in the proposed provision. If you go back to subsection 351(2), which is already in the code, as I mentioned, there is none of that concern. It's only in cases where someone dons a disguise with the intention of committing an indictable offence that the conduct is criminalized. There is no such safeguard here. I note that it does make reference to “without lawful excuse”, but it doesn't define what a lawful excuse is. It would be open to interpretation on the ground. Again, police officers aren't lawyers. The line between a legitimate protest and conduct that violates this prohibition might be left unclear to law enforcement on the ground. That kind of uncertainty could lead to unjustified arrest. It could have an unfortunate chilling effect on legitimate protest.
For all of these reasons, I think that this proposed amendment, although well-intended, is unnecessary and ill-advised.
That's all I have to say by way of introductory comments. I'd be most happy to answer any questions you have.
