Our colleague may have misunderstood what is behind this amendment. It is clear that more is needed than what he seems to think, even in Bill C-309. From the outset, our main argument has been that the riot offence already exists. Mr. Chairman, section 351 of the Criminal Code will still be around after this bill has been passed.
I raised my concern right from the start. I am worried that by using different terminology, we could end up with interpretation issues when the time comes to present the indictment to a court of law. The defence lawyer will stand up and say that he doesn't understand why his client is being charged. The fact is that this is a specific offence involving participation in a riot while wearing a mask or other disguise to conceal identity. I think we have to go back to what Mr. Richards was aiming to do when he introduced his bill.
We have tried to use the same terminology. Basically, we agree with the government when it comes to hoodlums, thugs and criminals taking part in demonstrations which are otherwise peaceful and lawful. People are going to make their views known, something which is not illegal in Canada, thanks to the Canadian Charter of Rights and Freedoms and rights such as freedom of expression and freedom of assembly. We wanted to be sure that there would be a specific offence for these kinds of individuals.
Let's look at what the initial purpose of the bill was. The idea was to create an offence related to wearing a mask or other disguise to conceal one's identity while participating in a riot or an unlawful assembly. We can get into a big debate about the semantics surrounding specific intent, but one fact remains. I heard what the official from the Department of Justice was saying earlier. She explained the differences between the two. I don't think she will contradict me on this point, but the Crown has to show that the individual participated in a riot. Participating in a riot does not just mean that you have both feet on the ground where the riot is occurring. People should put that completely out of their mind, because other factors can be involved.
After that, we're saying that the individual will stand up and say that he or she had a lawful excuse. Even the bill states that there must be the intent to disguise one's identity. It will not be the accused having to prove that his intent was to conceal his identity. The Crown will also have to prove that. Imagine a case where someone is taking part in a demonstration against a political leader, any political leader—you can choose whomever you like. That person is well intentioned and, in fact, a lot of people there are wearing a mask portraying the face of this particular political leader. However, at some point the demonstration turns into a riot. That particular individual had no intention whatsoever of participating in a riot and was actually wearing a mask, not to conceal his identity, but rather to express a point of view.
There were clarity issues in that regard. I repeat, the purpose of the amendment is to retain the same terminology, so that it reflects the way the courts are used to interpreting section 351. It is intended to ensure that what we are doing is creating an additional offence. That is my understanding. We are in favour of creating an additional offence—namely, wearing a mask with the intent of participating in a riot or an unlawful assembly. Thus two additional counts would be available to police. The NDP has no objection to that, as long as the provision is properly drafted and people's fundamental rights are upheld. It's a question of how it reads and how it's worded.
I'd like to come back to some of the statements made by my colleague, Mr. Goguen, regarding events in Montreal. It is clear—if you turned on your television this morning, you will know that what is going on there now is not very pretty—that no one accepts that kind of criminal and unacceptable behaviour, which cannot be tolerated in a free and democratic society such as ours.
Unfortunately, as the Quebec Ministers of Public Safety, Justice and Transport were saying, these petty criminals behind the smoke bomb attacks in the Montreal subway are taking advantage of a particular cause to try and impose their anarchist vision on people. That is, first and foremost, what we need to target and try to stop.
We deplore what is happening in Montreal, and we obviously sympathize with the people who are affected by this. Yet how can we arrive at the desired result while still showing respect for our laws and what Canada is all about? I do not think that a piece of legislation in and of itself, including Bill C-309—as currently worded or modified through our amendments—will succeed in changing that kind of attitude.
The idea behind this bill is to ensure that people who want to express themselves will be afraid to do so, and that concerns us. I think it's important to repeat that point. We are talking about deterrence here. When dealing with criminals, I believe that is the purpose that should be served by a law. A person who commits murder, for example, is subject to a given penalty or sentence. That is the very basis of our Criminal Code. It lets people know what will happen to them if they commit this or that crime. That is what the purpose of a Criminal Code should be, as opposed to preventing innocent people from engaging in lawful activities.
Was this bill drafted in the unavowed hope that it would serve the good citizens of Canada, the people for whom the Conservative Party has so much respect that it has removed legal remedies for hate propaganda, under the Charter of Rights and Freedoms, in order to support freedom of expression? People with a good reason to demonstrate, who do so appropriately, who express themselves by wearing a mask, painting their face or maybe even wearing some kind of disguise, may be so afraid of being caught in this kind of situation that they will stop expressing their views. That is my concern, and I believe that people on this side of the table share that concern. I only wish that were so for members on the other side.
In order to prevent people from committing crimes, appropriate measures need to be put in place, as opposed to punishing innocent people. You will say that this may be justified in a free and democratic society. In the City of Montreal, for example, they could decide to ban the wearing of a mask under their bylaws. It is not up to me to tell a municipality what it should or should not do. However, as a lawyer, I question some of this. I believe this was proposed earlier but was struck down by the courts for being too broad a limitation for which there was no justification.
Does the somewhat higher concentration of violence we have been witnessing recently justify violating people's right to freedom of expression? We'll see. Personally, I don't think we're there yet. Witnesses made the point that during the Olympic Games and at other major events, things had gone very well because proper communications were in place. The people who organized these events had their own security staff because they wanted to be sure their cause would not be highjacked by criminals and other individuals for whom we don't have an ounce of sympathy.
In our opinion, the way the bill is drafted will create problems, so much so that, where sections 65 and 66 are concerned, there are as many opinions about what they mean as people around this table.
So, imagine you're in a court of law facing a smart defence lawyer who starts to raise all sorts of questions about specific intent. One could cite the words of our colleague opposite, Mr. Woodworth, in a speech that I found to be absolutely brilliant, talking about whether the intent is specific or not, and so on. You can imagine the kind of debate this would give rise to.
So when in doubt, what happens? The accused is always acquitted. If that is our objective, let's use wording that does not work, could cause confusion and will ensure that we do not achieve the desired goal. In the opposite case, let us instead rely on a provision that has already proven itself. That provision may be difficult to access, but it would act as a deterrent. People would know that if they took part in a riot, not only would they be subject to a given penalty, but if they did so while wearing a mask or face paint or any other disguise, they would be guilty of an indictable offence.
It is directly creating an additional offence to the current offence of participating in a riot, which is subject to a penalty. If the provision is properly drafted and the offender is subject to a five- or ten-year prison term, that may make sense. However, when the provision is vague and subject to interpretation or is confusing, that is a problem. At some point, the accused will get up and say that he had absolutely no such intent. That would be the case even if there had to be proof of intent and the Crown had proven its case in that regard. The fact that a person never removed his or her mask while participating in a riot or deliberately causing damage, well, all of those things are considered to be aggravating factors by the courts in setting the sentence. Now we are making it an offence in the strict sense of the term in relation to the other alleged offence. In my opinion, that meets all the criteria and avoids a lot of additional discussion. It is a serious offence that would be severely punished through the maximum sentences that are provided for. That was the intended goal. Our job is not to show how smart we are, but rather to find wording that reflects what can be found in the Criminal Code and which has already proven its usefulness.
I understand the point raised by Ms. Morency, who referred to section 255. I can conceive of that type of wording being in the Criminal Code, but given Mr. Richards' main objective, as he explained it to us here, and considering what we are aiming to do, this is not so much about bringing in the notion of a lawful excuse as it is about creating a completely separate offence in order to punish this kind of illegal and criminal behaviour. We are talking about someone taking part in a riot and hiding his or her identity with the intent of participating in a riot, as opposed to simply expressing a viewpoint. Let's not focus on the lawful excuse part of this. Let's focus instead on what we are really trying to accomplish, which is to create a second offence relating to rioting and unlawful assembly.