Evidence of meeting #36 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offence.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Carole Morency  Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

11:40 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

Again, to come back to my earlier remarks, the proposals in Bill C-309 would only kick in if the offence of rioting or committing or participating in an unlawful assembly have already been made out.

The offence is there. The question is that in the facts of the case, did the accused actually wear a mask or other disguise to conceal their identity, so it becomes a question of the facts in the case. The crown would be looking to lead evidence to indicate the intention, to prove the intention. They still have to prove that they were wearing it for the purpose of concealing their identity.

11:40 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

For the purpose of concealing identity.

11:40 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

The accused can point to, as I mentioned earlier.... It's not a reverse onus, but they would look for some credible evidence, or point to some credible evidence as to the reason why they might have been wearing a mask, or disguise, whatever. Then the burden is still on the crown to prove, in that situation, that it was not for a lawful purpose.

11:40 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

I am not in any way criticizing, but in some senses you have collapsed or integrated the proof of concealing, the purpose of concealing identity, and the offering of a lawful excuse. This raises another issue but I only wanted to be clear that you're saying that it's not simply proving the most general “you intended to wear a mask” but it's that “you intended to wear a mask with the purpose of concealing identity”. That would have to be proved, is that correct?

11:40 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

That would be a common sense interpretation of the words proposed by Bill C-309.

11:40 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Right. And we wouldn't likely treat words there with that common sense as being there for no purpose, or that they're superfluous. Thank you.

11:40 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

There's a distinction between the amendment and the bill in terms of their approaches to the disguise.

11:40 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Yes. My purpose here is simply to show that in fact there is a multitude of interpretive disagreements and challenges in the provision as it stands. It's far from a clean text. You referred to how the purpose of concealing identity and lawful excuse can blur a little bit in terms of, if you have a lawful excuse, perhaps that means you don't have the purpose of concealing identity. Is that part of what you were saying might be the interaction between those two clauses?

11:40 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

That's correct. The words “without lawful excuse” are not exceptional here. They appear elsewhere in the Criminal Code. Prosecutors, defence attorneys, and courts are well accustomed to interpreting that phrase in the context of each case as it appears before them.

11:45 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Great. Part of our concern, especially in the context of the kind of conduct that we're considering here, is that the front-line interpretation is actually being done by law enforcement officers and does involve judgment calls about whether people get detained before prosecutors even get involved in making their decisions, let alone before a court gets involved.

It's a bit of a concern if lawful excuse is something that in this kind of context is not quite clear from the beginning. I asked Chief Constable Graham some questions about what might be considered to be lawful excuse. He said that we should talk to a lawyer about that, and I understand his answer.

From your perspective is it clear—and if it's clear all the better—that if a woman, for example, is wearing a veil or somebody is wearing bandages for medical reasons, two examples that Mr. Richards has given, and the event becomes a riot or an unlawful assembly, continuing to wear either would be a lawful excuse?

11:45 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

Again, you have to go back to the starting point, which is that the accused—

11:45 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

—is participating.

11:45 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

—has been convicted of having committed the offence. At the same time, if they are wearing a mask to conceal their identity, that's the additional part. You can't ignore the first step.

11:45 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Right. So it's if you are participating in a riot.... Good. I think you're absolutely right.

So if you are participating in the riot, in the way that the law requires—and I will come to this in a second—degrees of intentionality to be participating in a riot, and not just that you're happening to be standing in the middle of the riot, you would actually be required to remove that face mask if you didn't want to be criminalized?

11:45 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

No, because if they have a lawful excuse—

11:45 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

That's what I was asking.

11:45 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

—that would be why they're wearing it.

11:45 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

That's why they're wearing it, but does it extend to the point at which, if they're actually participating in a riot and wearing it, do they have to remove the veil in order not to be subject—at least, in theory, in criminal law—to that added offence?

11:45 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

I can only assist the committee by looking at the plain language of the words used in the proposal before the committee, which is “wearing a mask or other disguise to conceal their identity without lawful excuse”. It's all relevant. If an individual, in the example that I think has been posed, is wearing a veil for a religious reason, there is a lawful reason for that.

11:45 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Absolutely.

11:45 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

It's not to conceal their identity in that context. It's for a religious purpose.

11:45 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Okay. In that answer you've done a lot of work with the words “to conceal identity”, and I note that. It shows that those words could be very helpful. Thank you.

With respect to a peaceful demonstration context, Mr. Goguen, I think, did very well to remind us how the police, as witnesses have emphasized, view their role as being to enhance constitutional rights to peaceful assembly, especially to protect the space for those who want to demonstrate peacefully. I've mentioned this before. Even the example of families wanting to know they can demonstrate safely was brought up by one witness.

In that context, I don't think there's any issue around certain kinds of masking, right? Lots of examples have been given about how people wear masks for expressive reasons. But I want to ask you about the reason for anonymity and how that might interact with concealing identity. If somebody—a member of a diaspora, for example—wears a mask because they fear that a foreign state may have photographers on the side of a demonstration; or others for justified or unjustified reasons, worry that our own state services may on occasion photograph peaceful demonstrations and they therefore want to be anonymous; or somebody thinks that certain employers may scan video of demonstrations to see whether any of their own employees might have been participating, these are all reasons for anonymity.

In the middle of a peaceful demonstration nobody has any issue with that. Does there come a point—again, you've indicated the predicate clause of “after committing an offence”—when you are involved in an unlawful assembly or riot that the anonymity reason is no longer a lawful excuse, so if you're caught in the middle of something you would then have to take off your mask, if your reason for wearing the mask is to be anonymous?

11:50 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

You're asking me to speculate how a court might turn its mind to it in a specific case?

11:50 a.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

I'm asking how the police would have to do it before we even get to the courts.

11:50 a.m.

Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice

Carole Morency

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.