Mr. Speaker, I am pleased to rise to debate Bill C-309 and its proposed amendments to the Criminal Code pertaining to riots and unlawful assemblies engaged in by those who cover their faces to avoid being identified and/or charged.
Like my colleagues on all sides, I was disturbed and saddened by the images from the Vancouver riots and the lawlessness that was part of them. I can appreciate the desire of the sponsor of the bill to seek legislation to address the incident. However, and regrettably so, this legislation is not the answer for the following reasons, which became evident at committee. There is absolutely nothing to suggest that had this legislation been in the Criminal Code last year, the Vancouver riots would not have happened or that they would have been policed differently or that those who have been punished would face stiffer penalties.
Police officers told committee that rioters who cover their faces to conceal their identities are a particular problem, not only because they are often among the most violent participants but also because they are harder to identify and thus more difficult to bring to justice. To deal with this challenge, police forces across the country have been increasing training and resources for public safety units. They have been developing new approaches and shared best practices to deal with unruly crowds. I applaud these efforts on the part of the Canadian emergency services, as these are indeed what are required to combat rioting effectively.
What is not required are amendments of this nature to the Criminal Code, because laws to deal with rioting and mass rioting already exist. For the sake of comparing the bill before us with the existing law, I refer to section 64 of the Criminal Code, which defines a riot as “an unlawful assembly that has begun to disturb the peace tumultuously”. Section 65, in consequence, states that “Every one who takes part in a riot is guilty of an indictable offence”.
The indictable offence is crucial. If we turn to subsection 351(2) of the Criminal Code, it states: “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”. As we can see, the Criminal Code already gives law enforcement the legislative tools necessary to deal with masked rioters. Bill C-309 does not add to them.
The sponsor of the legislation, the member for Wild Rose, has previously stated in the House that the bill differs from the existing law because it gives police the ability to deal pre-emptively with people who conceal their identities in the context of a riot. In his own words, the bill was concerned with “loitering, masked troublemakers”.
If one looks closely, Bill C-309 creates a subsection to section 65 of the code. As such, it can only apply to people who have already committed an offence under section 65 as it presently exists. Simply put, one has to be already engaged in a riot, an offence under the code, to trigger the application of this new subsection. As such, while the member seems to seek a pre-emptive catch-all in the code to prevent masked rioting, this is actually not what is contained in Bill C-309. Even if that were the proposal before us today, it would warrant extensive critique. Any bill that would allow police to detain people simply for standing around while wearing a mask and subject them to as many as 10 years in prison would raise significant issues with respect to the charter and civil liberties.
If law enforcement were to interpret Bill C-309 in this way, as the member for Wild Rose apparently intends, we could expect court challenges on the grounds that such an application of the law was in violation of section 2 of the Charter of Rights and Freedoms with respect to free expression, or section 7 with respect to the protection of “life, liberty and the security of the person”.
Amending the statute to allow for pre-emptive arrests of people wearing masks, as the member suggested was his intent, would be a constitutionally suspect approach. Amending the statute without allowing for such arrests, as Bill C-309 does, is redundant. To be clear, rioting while wearing a mask is denounced by the code. Prosecutors lay charges against those who do so and judges enter convictions in these types of cases. There is nothing to suggest that somehow the addition of this to the Criminal Code would change the course, or would have changed the course, of the Vancouver riots.
I understand why colleagues and those who are listening at home may wonder why, if I am saying that the bill is redundant and would do nothing, I would still express my opposition to it. The truth is that even as it is written, Bill C-309 is problematic from a charter perspective. It states that it applies to those concealing their identity “without lawful excuse”, a term not defined in the statue. I appreciate that all members agree that this law is not meant to target people who cover their faces for religious reasons or sports fans whose faces are painted with team colours. However, I am concerned that if we do not further clarify the bill we risk unintentionally subjecting these people to charges under this legislation.
Surely, if a person with a religious face covering attends a public gathering in good faith and the gathering then becomes a riot in which the person participates, he or she should be charged with rioting. That would be an unintended consequence. However, he or she should not be subject to charges under a statue intended to apply to masked provocateurs. For that reason, it would be preferable to add a clarifying clause specifically denying the “lawful excuse” exemption to include face coverings worn as part of a traditional practice of a culture or religious group, as was previously proposed by the Liberal member of the committee. Such a definition would be a clear demonstration that Canada was eager to defend religious freedom both at home and abroad.
Moreover, beyond the religious concern, colleagues have raised concerns about freedom of expression. For example, those protesting at a rally against a political leader and who wear masks that depict the leader may be doing so not necessarily for the purpose of concealing their identity, even though this would be the result. Ultimately, even if these scenarios were not contemplated by the statute, it would not alter the fundamental problem that this bill criminalizes what is already in fact criminal.
There can be no doubt that rioting is a profoundly troubling phenomenon that Canada must deal with in a serious and effective way. For parliamentarians, that means we must support police efforts to develop better training methods and better crowd control techniques, including increased and strengthened resources to improve communications with revellers and demonstrators, to share best practices, and to increase the number of qualified officers available to deal with large public gatherings. We must ensure that those who violate the law by encouraging rioting and by concealing their identity while doing so face appropriate consequences.
However, by enacting legislation that is redundant on its face, we do not help combat the problem. By wording the bill in such a way that it may unintentionally violate Canadian charter rights, a new problem may also be created.
For these reasons, we find it difficult to support the bill. We encourage all members to recognize that the Criminal Code already deals appropriately with masked rioting. It is our parliamentary duty to correct gaps that exist in the law, but we must also be aware that the law does what it is supposed to do today, and the matter is in another realm entirely.
In conclusion, while we share the hope of colleagues that we will not see riots and unlawful assemblies that result in property damage, injury or worse, this legislation neither accomplishes this purpose nor gets us any closer to doing so.
