Justice Committee on May 10th, 2012

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

I find that very helpful. Thank you.

I just have one last question. Emphasizing that our amendment requires specific intent, it's an intent to commit an offence, which itself requires intent. I'm not sure how the two interact in any way that makes that meaningfully specific intent, but we'll leave that to one side and ask the following. I could be wrong, but my understanding is that the courts have imported at least some elements of subjectivity to the crimes of participating in a riot or an unlawful assembly; it's not simply being caught in either of those that criminalizes it. Is that correct?

I ask because this could prove to be extremely important if this does pass, to make sure that it's clear that the predicate condition involves some form of intention to be part of a riot or an unlawful assembly. Do you know whether or not some elements of intention are part of those offences?

[Carole Morency]

I believe the committee has heard some evidence to the effect of how the existing offences work now on riots and non-lawful assembly. Committing either of those offences is not being changed by Bill C-309.

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

Exactly.

[Carole Morency]

Bill C-309 is not changing the elements that must be proven in either case.

There is a distinction in terms of what must be shown, obviously, for either offence. The unlawful assembly offence in section 66 is a summary conviction offence; it's a lower-level type of offence. You still have to prove all of the conditions of that offence before one can be convicted of it, including a gathering of three or more persons, etc. But it is possible under that offence for somebody to be convicted, if all of those conditions are present and they are aware of the situation and choose to remain passively acquiescent; there is case law to that effect.

What's important for the committee to recall is that Bill C-309 is not changing the fundamental operation of either of those offences. Rather, it concerns what penalty is to be imposed when a person who has committed one of those offences is also wearing a mask to conceal his or her identity without lawful excuse.

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

Great. Thank you.

You've clarified that the subjective element is knowledge or awareness that something has become a riot or an unlawful assembly, and choosing to stay would be a rough summary of the intentionality, the mens rea dimension.

[Carole Morency]

Well, there is an objective and a subjective component for it.

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

Of course. And so, that would be the subjective element.

[Carole Morency]

Yes.

If, knowing that all of those factors were present, and you have three or more persons present with an intention to carry out a common purpose—and that's assessed on an objective basis—and the actions become tumultuous in the circumstances and those people choose to stay in that assembly for whatever reason, and they have been found to have committed the offence.... Bill C-309 is not changing any of that.

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

Good. Thank you. I find that very helpful. It clarifies and puts us all on the same page. I honestly believe we were already on it, were it not for some testimony that seemed to suggest that the mere objective fact of there being an unlawful assembly or a riot could subject you to this mask offence.

So thank you so much.

I have no other questions.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Côté.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Thank you, Mr. Chairman.

When I'm confronted with a difficult problem, I try to use plain old common sense and I especially like using very vivid images to illustrate it. It has to do with the fact that I believe in God. I always try to follow Christ's example. We all know that, in the Scriptures, he used parables to denounce completely unacceptable social realities, in order to make them understandable to the people listening to him.

In my other life, I worked for Ameublements Tanguay for 12 years. I met an enormous number of people during that time. I learned a lot about life. As I listened to my colleague, Françoise, I was reminded of one person I met there. A security guard, who was taking very advanced training to become a security consultant, so that he wouldn't have to be just a salesman selling security systems and equipment, had developed an integrated security concept based on available means and a specific configuration. Working with his client, he saw what it could look like. That man, who also worked at Ameublements Tanguay, pointed to the Frost fence surrounding the warehouse transfer yard, which had barbed wire at the top. He told me it was a way of preventing honest people from inadvertently entering private property.

That example, which may seem ridiculous at first glance, was a very strong image. When it comes to public safety and security, the main problem is that the means used to prevent people from committing a crime have to be balanced. The purpose is perfectly legitimate, as is the case for our colleagues opposite. But we need to avoid security systems that are overly sophisticated, massive and brutal that end up placing tremendous restrictions on individual and collective freedom. People have to be able to move around, assemble and express themselves in public.

Colleagues opposite are poised to reject my colleague's amendment. They want to hide behind a false sense of security by putting up a Frost fence that will considerably limit the freedom of expression of honest people, and the legitimate right of assembly and the right to express one's views in public. That is very disappointing.

I am going to reverse what could be called the burden of proof. No one among the colleagues who have spoken this morning or the witnesses we heard in previous days—and I do mean no one—has been able to assure members of this committee that honest people attending a demonstration which unfortunately gets out of hand and turns into a riot, or who involuntarily end up in an unlawful assembly, will not suffer considerable harm as a result of the provisions of Bill C-309.

Unfortunately, we are not lacking even very recent examples of massive arrests made using the tools currently available under the Criminal Code. I cited the example of 49 arrests made at the Cégep de Limoilou in Beauport-Limoilou at a gathering of three people. That is a terribly high ratio of arrests for a gathering that was intended to be peaceful, yet where excessive means seemed to have been used. I won't make any predictions as to the results of future court summons. An enormous number of people were arrested, including one student who is totally opposed to the strike and is now forced to challenge a fine of about $500. I also reminded the committee of the assemblies, indeed, all the unfortunate events that occurred during the G-20 Summit in Toronto.

I did not intend to go on at length about this and provide a demonstration. I believe my examples were quite eloquent.

Unfortunately, the bill, in its current form, is far more likely to cause harm to honest people than allow our police to legitimately prevent people from committing crimes during unlawful assemblies or riots. What is truly unfortunate is that we are creating a public space that will increasingly be an obstacle course—a space that will be very difficult to access if you are someone wanting to express your opinion, assemble freely and exercise your legitimate right to live your life as a citizen. That is very worrisome. I will conclude on that note.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Jacob.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Thank you, Mr. Chairman.

Personally, I am in favour of the amendment. No one wants to see people committing offences or engaging in criminal activities. Mr. Champ stated in his testimony that Bill C-309 would limit the right to freedom of expression, privacy, the presumption of innocence and freedom of association. There have been a number of Charter challenges relating to similar pieces of legislation.

I would simply like to point out that, last Tuesday, Prof. Stribopoulos stated that there was some confusion about sections 309 and 351. He also said that this would make the operation of the judicial system more cumbersome. Out of a concern to ensure consistency with principles of legal interpretation and in order to clarify things—in the unamended wording, the scope of these principles is too broad—I intend to support the amendment moved by Françoise this morning.

Thank you, Mr. Chairman.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Seeing no other interventions, I shall put the question.

Shall amendment NDP-1 pass?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Could we register the vote, Mr. Chair?

[The Chair, Conservative, Dave MacKenzie]

Call the roll.

(Amendment negatived: nays 6; yeas 5)

We now have a government amendment to clause 2.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

The amendment reads as follows:

That Bill C-309, in Clause 2, be amended by replacing line 15 on page 1 with the following: exceeding ten years.

We're asking that Bill C-309 in clause 2 be amended by replacing line 15 on page 1 with the following: exceeding 10 years

Bill C-309, Mr. Chair, provides a maximum penalty of five years for the offence of taking part in a riot while wearing a mask to conceal identity without lawful excuse. The purpose of the amendment is to ensure that the penalty for this new offence is consistent with the penalty provided for an existing provision of the Criminal Code that addresses similar conduct, and that's subsection 351(2).

Subsection 351(2) of the Criminal Code is a provision of general application and creates an indictable offence punishable by a maximum penalty of 10 years for any person who wears a mask or disguise with the intent of committing an indictable offence. Taking part in a riot is an indictable offence, and therefore an accused who is convicted pursuant to subsection 351(2) of the code of wearing a mask while taking part in a riot is liable to a maximum penalty of 10 years.

So we would be moving it from five to 10 years to keep it consistent with subsection 351(2).

There are two new offences. By raising the maximum penalty to 10 years in proposed subsection 65(2) of the code, the amendment would avoid creating different penalties to punish similar conduct. Notwithstanding that being a member of an unlawful assembly is a precursor to taking part in a riot and is therefore a less serious offence, the penalty in Bill C-10 on indictment for the two new offences is five years. Thus, by raising the maximum penality in subsection 65(2) to 10 years, the amendment would improve the bill by reflecting the fact that taking part in a riot while wearing a mask to conceal identity is more serious than wearing a mask to conceal identity as a member of an unlawful assembly.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chairman.

I don't have much to say about this amendment. I actually find the logic behind it somewhat unusual. On the one hand, our colleague tells us that a similar offence already exists, which I have been repeating over and over throughout these hearings on the bill, to the point of exhaustion. However, finally we can at least agree on something. Yet this cannot be considered a similar offence. An expert from the Justice Department told us that there were differences in terms of intent. Furthermore, we also heard all the comments made by government members in that regard.

With Bill C-309, we are creating a provision which is incredibly vague from a legal standpoint. In my opinion, this bill will, unfortunately, generate more problems than it does solutions, in terms of what we are all trying to do, for the reasons I already explained at great length, partly on Tuesday, and partly this morning. There is an attempt here to impose a 10-year sentence, supposedly because they are similar offences.

At the very least, we should ensure that the Crown will not have to determine which indictment to proceed under or whether it is pertinent to rely on subsection 351(2) or subsection 65(2) because of the different sentences. I, personally, thought it was more similar. However, I noted that fact that our colleague, Mr. Goguen, considers the two offences to be very similar.

Unfortunately, because of the way section 65 is drafted, imposing a 10-year term of imprisonment does not necessarily do justice to the goals we are trying to achieve here.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Côté.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Thank you very much, Mr. Chairman.

It is really unfortunate, in light of the defeat of our amendment, to see that we are now stuck with this amendment which, in my opinion, will impose a tough sentence and, in particular, create an obvious illusion of security. The idea of imposing tough sentences as a deterrent has given rise to much debate for a very long time now.

As a matter of fact, I had a chance to look at a study entitled “Punir ou réhabiliter les contrevenants? Du Nothing works au What works (Montée, déclin et retour de l'idéal de réhabilitation”, written by Mr. Pierre Lalande, research officer at the Quebec Correctional Service under the Ministry of Public Safety. That study showed, firstly, that when it comes to punishment or rehabilitation, this is a complex subject that is not only difficult to understand, but also one where it is difficult to arrive at a simple position or simple conclusions. Ultimately, the conclusions that can be drawn are as complex as is the human reality. At the same time, he pointed out that some great thinkers, like Robert Martinson and Pierre Landreville, a leading expert on criminology and the study of criminal policy and practices, believe that what could be called the Quebec school of thought or Quebec practices in terms of punishing criminals or taking them through a process of rehabilitation, has yielded extremely convincing results. At the very least, we should not be ignoring that accumulated expertise, which in fact shows that Quebec society has one of the lowest crime rates.

I am still just as amazed by this, and it's too bad. Unfortunately, our amendment was defeated. That might have given a different direction to my comments with respect to the maximum 10-year sentence. But based on the same arguments I made previously—in fact, at the last meeting and again recently—with respect to the amendment that was moved, we are potentially imposing prison sentences of up to 10 years on people who may legitimately have been a victim of circumstances—people who were present to express their opinion but had no criminal intent. That is really appalling.

My colleague, Françoise, made the point a number of times—as did I— about deterrence, drawing a parallel to the means, other than legislative, that can be deployed to counter crime.

When we heard from the chiefs of police, who have expertise in controlling crowds that can get out of hand and degenerate into uncontrolled rioting, the question of means came up several times.

We can also talk about police methods. They have evolved to such an extent that police now have many more tools available to them than they did previously, when they had to be satisfied with using a baton. There are means available now that are, not only less brutal, but more respectful as well of the unfortunate presence of people who are nothing more than witnesses or participants, with no criminal intent. That is already a good thing.

But to use another vivid image, in terms of available means, I think we can all agree that, in order to control excessive speed on our highways, we impose pretty hefty fines. And yet one may wonder which approach has the greatest disincentive effect. Is it the hundreds of dollars in fines and the demerit points the offender will be facing or is it a police presence on our highways?

Let me give you an example. As I was driving to the general council meeting of the Quebec City branch in Drummondville, I was passed on Highway 20 by the owner of a recent model Volvo S70—in other words, a pretty expensive vehicle—driving very fast, who hypocritically applied the brakes as soon as he saw two QPP police cars. I don't think he did that because of the amount of the fine. At least I assume that the amount of the fine was probably not the greatest deterrent, because that individual had the means to own that kind of car. The much greater deterrent was the risk of being stopped by police and being delayed for some time to the point of losing patience.

I'd like to come back to my example of the Frost fence. What is unfortunate is that we will be imposing on many people who have never engaged in criminal behaviour the obligation to show that they had a legitimate reason for wearing a mask. We will be exposing people to very tough prison sentences without any kind of assurance that this will reduce crime in the context of a riot or unlawful assembly. One of the unhappy consequences of that is that our police could end up with a false sense of security by having the means to control crime. That is the reason why I intend to vote against this amendment.

I come back to the example of my friend who attended several demonstrations. Before going to Toronto, he informed me of his last wishes in case the situation got completely out of control. As I said, he is highly experienced. He has taken part in a number of always peaceful demonstrations, in order to express his views in a public space and fully cooperating with police and other authorities to ensure that things would not get out of control. A number of times, he expressed his frustration at seeing rioting thugs highjacking perfectly legitimate demonstrations. One role that I am very proud to play within this committee involves giving authorities the means to ensure that my friend will not be exposed to harm or become the innocent victim of rioting hoodlums, thus requiring me to honour his final wishes.

It is really a shame that we have hit a wall with our colleagues opposite. We are really not creating solutions; rather, we are creating a whole host of problems.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Ms. Sgro.

[Judy Sgro, Liberal, York West, ON]

Thank you very much, Mr. Chair. I am filling in for Mr. Cotler this morning and following this discussion.

I have to tell you that in my opinion this is nothing more than overkill. I have no sympathy for a bunch of hoodlums who go out there and tear apart our cities and cause massive damage, without question.

There's always that balance that we as legislators are supposed to be looking for. Most of the time it is a bunch of young people who are out voicing their objection to whatever. A few of them end up out there creating the kind of crimes, and so on and so forth.

Again, you know what? They are at a particular point in their life; they get carried away. We saw what happened in Vancouver.

To suggest that you give them up to 10 years for wearing a mask when the actual penalty for participating in the activity would probably be much less, I really think is overkill.

I'm not surprised because I think it fits with the government's agenda. I would much rather focus on how to make sure that people who are going to participate in these kinds of activities know that there are strict penalties, that they are going to be held to account and that they will be pursued. Also, given the fact that we are closing Kingston Penitentiary and a few other prisons that are very old in this country, and that if we continue on with this extensive crime agenda here, they will probably have to take a number or wait in line because there won't be a space for them in jail if we're going to turn around and look at these kinds of severe penalties.

It's nothing short of overkill and I will not be supporting it.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Seeing no other interventions, I will call the question.

Shall G-1, the government amendment to clause 2, carry?

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Can we record the vote?

(Amendment agreed to: yeas 6; nays 5)