It's not unusual for the police in this situation or in any other situation to have to bring their judgment and expertise to bear on the facts that present to them. This committee has heard lots of evidence already from some police witnesses about their experience in this area and how they routinely exercise discretion in these situations.
I can only suggest to the committee that the language “without lawful excuse” is one that all players in the criminal justice system are familiar with and, ultimately, if it proceeded to that level, a court would look at all the facts and circumstances and have to make a decision. Was there a lawful excuse in that situation for that accused who has committed either the offence of participating in a riot or unlawful assembly and has persisted in wearing the disguise for the purpose of concealing their identity? All that would be before the court.
All I can say, as I've already indicated, is that when the police appeared before this committee, I think they indicated that they exercise discretion quite a bit in these types of situations. My understanding of how Bill C-309 is proposing to address the law here is that you're dealing with a situation that is no longer a lawful assembly, a lawful gathering, but has transgressed into a riot or an unlawful assembly. I think those factors are before the police.