Mr. Speaker, Bill C-309, more than any other bill, epitomizes the Conservatives' approach to criminal law: a front page and then a bill. It is that simple.
My colleague gave a very thorough explanation of the reason for Bill C-309 and why the Conservatives brought it forward. Riots occurred after a sports event, the final game of the Stanley Cup. This should have been a very happy occasion, even though the home team had just lost. Unfortunately, it degenerated into a riot, and consequently the Conservatives introduced this bill. This is a private member's bill. The government would never have dared introduce it directly; therefore, it did so indirectly.
There is a problem, which we already raised at second reading of the bill: our Criminal Code should be coherent. That is our concern. It is not about preventing riots or siding with rioters or people who want to use violence. The main problem is that section 351 of the Criminal Code already provides the solution to this problem. In fact, police already have this tool. They can go to a crown prosecutor and lay criminal charges against anyone who wears a mask while committing a crime.
Subsection 351(2) reads as follows:
Disguise with intent
Every one who, with intent to commit an indictable offence, has his face masked or coloured or is otherwise disguised is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
This is fairly broad and covers almost all the cases mentioned, including those that fall under section 65 of the Criminal Code, the provision targeted by Bill C-309, about taking part in a riot. We will come back to this provision. It is clear what the hon. member is trying to do: he is saying that, if a person conceals his or her identity and participates in an unlawful assembly or a riot, which falls under sections 63 and 64 of the Criminal Code, that person is guilty of an indictable offence in one case and an offence punishable on summary conviction in the other.
It is true that subsection 351(2) does not cover the second type of case covered by the hon. member's bill. However—and this was denied by the government throughout the committee process—it is also true section 351 of the Criminal Code does not apply. In fact, we heard it in the answers to questions asked here in this House: the section would apply instead to armed robbery or theft-related cases. The government therefore did not see how it could be used in the case of riots or unlawful assemblies, even though it was proven in committee that this subsection of the Criminal Code has all the latitude required to cover these types of situations. This is so true that the government itself, through the Conservative members on the Standing Committee on Justice and Human Rights, proposed an amendment to insert the sentence set out in subsection 351(2) of the Criminal Code into the bill.
Those who were in the House and who participated in the debate will recall that the hon. member for Wild Rose's initial bill set out a maximum term of imprisonment of five years. I asked questions in committee that showed that subsection 351(2) sets out a maximum sentence of 10 years for committing an offence while wearing a mask or other disguise. In fact, I asked the following questions. Is there not a risk that this will cause confusion for the courts? We know that the Conservatives do not always like court rulings. Once this is before the court, how will it be analyzed? What charges will be brought against the offender? Will the offender be charged under subsection 351(2) or under subsection 65(2)?
It is not always clear. That is why our main point about the government's crime bills has not changed: the government must be careful about using a piecemeal approach.
They change little provisions here and there, because they see the headlines in the paper and decide that they have a mission and they must change something. The tools are sometimes there, but they are simply not used. That is the first thing to consider. It is true that this does not cover offences punishable on summary conviction, but is this the direction we want to go in? Based on the wording of the bill, I have my doubts.
There are some problems with the way the member drafted his bill. Since it covers offences similar to what is found in subsections 65(1) and 351(2) of the Criminal Code, it is problematic that he did not use the same words. We proposed an amendment to at least try to create some logic in the Criminal Code, but the government flat out refused any kind of amendment that would have made sense.
However, in changing the maximum sentence to match subsection 351(2), the Conservatives admitted that what we were saying in committee must not have been so stupid after all. We were saying that there was a connection between subsection 351(2) and what the member was trying to do in his bill, especially in cases of riots. After being amended, the bill now has exactly the same sentence.
That said, according to the bill in front of us:
Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.
That is the other problem I want to address. Police officers told the committee that they needed tools. I believe it. We all saw see what happens when we watch riots on TV, whether they are in Montreal, Toronto or Vancouver. They are absolutely disgraceful. No one supports these kinds of things. No one thinks that freedom of expression means that people are free to break windows, hit others or do whatever they want. Freedom of expression, which is protected in the Canadian Charter of Rights and Freedoms, does not protect that kind of thing. However, our charter clearly states that we have freedom of expression.
If my colleague wants to participate in a protest and what she wants to wear covers her face, no matter what it is, this is not in itself an offence, because she is expressing her opinion. It is a way for her to express herself. That is the problem.
Several witnesses told us very clearly that these kinds of measures would definitely discourage many people from expressing their opinions. Some of my colleagues can explore this issue a little further.
If someone taking part in a legal, peaceful protest decides to wear a mask depicting a prime minister, for instance, to express his or her opinion during the demonstration, and the police suddenly declare that the protest has become a riot or an unlawful assembly, it is not always easy for the people marching at the end of the demonstration to know that it has been declared unlawful and that they are therefore committing an offence under the Criminal Code and are subject to prosecution.
This means there is an extremely dangerous reversal of the burden of proof. The biggest difference between subsection 351(2) and the provisions the member is proposing in this bill is the reverse onus; in other words, it will be up to the accused to demonstrate that he or she had a lawful excuse.
The Conservatives even rejected the amendments aimed at defining lawful excuses, such as a burka or other religious attire. No one knows what “lawful excuse” means in the context of Bill C-309 in its current form.
The major flaws in this bill are cause for serious concern. The committee process certainly did not calm any of these concerns. The only purpose it served was to make the government admit in a roundabout way that this provision already exists and assign the offence an equivalent sentence.