Thank you very much, Mr. Chair.
I'm only going to speak, unfortunately, because my name was referenced in some of the comments made at our last meeting by one of the members opposite.
There is an old lawyer's practice whereby, in fact, we generally try to “anonymize”, if that's a word, counsel. We even go to the point of wearing robes in important cases. We do that because in a court of law, when we're discussing legal concepts, what's important are the issues, the evidence, and the principles, not the names and personalities of those involved. Of course, Parliament is not composed of lawyers only, and Parliament does not operate on the rules of courtesy extended in a courtroom. But I will extend that lawyerly courtesy to the member opposite and not mention that member by name.
I quite readily accept anyone who wants to disagree with the legal interpretation I've made. I don't mind that at all. I will say that it's true that in my remarks I did not specifically refer to the fact that the new act would require the wearing of a mask to conceal identity. However, where I think the member opposite erred, in calling my remarks incorrect, was in thinking that it makes any difference and that somehow, the reference in the new act to an intent to conceal identity does not make this an offence of general intent.
Now, I had to stop and think, because it's been about 40 years since I underwent the joys of introductory criminal law. But I'm sure that at that time I was taught a legal principle of interpretation—and it's only an interpretation—saying that there's a presumption that people intend the natural consequences of their acts.
I had occasion last night to check with a member of the bench who is very close to me to inquire whether that person was aware of whether the principle had been overturned or in some way undone by our courts. That member of the bench was not aware that the principle had been overturned.
When I see that this bill makes it an offence to wear a mask, I think there is a presumption that people wear masks to conceal their identities. I'm not saying that it's a presumption that cannot be rebutted. But certainly, the intent in wearing a mask presumes or subsumes an intent to conceal identity, unless that presumption is rebutted.
I think part of the problem that the members opposite have is that again they may not be aware of another old lesson from introductory criminal law, which distinguishes between intent and motive or intent and excuse. The reasons people do things don't necessarily refer to their intent. What makes something intentional is its distinction from being accidental.
My remarks to the effect that the new offence is one of general intent rather than specific intent remain, in my view, quite correct. All one requires to be convicted under the new offence is an intent to don a mask and to keep the mask on while participating in a riot or an unlawful assembly. Quite frankly, I regard that to be a much less culpable intent than the intent required under subsection 351(2), which makes someone much more culpable, because when that person puts on a disguise he or she has to actually be planning to commit an indictable offence. Under the new act, no such planning or foresight is required.
If anything, one could be convicted for the stupidity of failing to take off a mask when you find yourself participating in a riot or part of an unlawful assembly. That's why I would be much happier if this offence that we're considering did maintain a lower penalty than the offence in section 351, because of the difference in the culpability required.
To put it another way and to use more modern language than my first-year law from 40 years ago, this new offence does not require a nexus of intention between the intent to put on a mask and the intent to commit another offence. When one intends to put on the mask or when one intends to keep the mask on, one does not have to do so with any intent to participate in a riot or become a member of an unlawful assembly. There is no nexus of intent.
The only nexus required under this offence is one of circumstance, that is, of time and place. One must have the mask on when one is participating in a riot or is part of an unlawful assembly. The provision under section 351 on the other hand requires the much higher nexus of intention between the intent to don the disguise and the intent to commit, I think, an indictable offence.
Here's an interesting point, Mr. Chair. The fact that the NDP, the opposition, has moved this amendment to import a specific intent discloses that all of their arguments to say this offence already required a specific intent were not really seriously made. If they were actually seriously arguing earlier that Mr. Richards' offence already required a specific intent, they would not feel the need to introduce an amendment to import a specific intent. Or to put it the other way, if they really believe Mr. Richards' bill does require in itself a specific intent, then their introduction of this amendment purporting to introduce a specific intent is totally redundant, superfluous, and disingenuous.
You can take your pick. Either way, this amendment does not commend itself to me, so I will be opposing it.
Thank you.