Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 34 - Evidence for April 18, 2013
OTTAWA, Thursday, April 18, 2013
The Standing Senate Committee on Legal and Constitutional Affairs, to which
were referred Bill C-37, An Act to amend the Criminal Code; and Bill C-309, An
Act to amend the Criminal Code (concealment of identity), met this day at 10:31
a.m. to give consideration to the bills.
Senator Bob Runciman (Chair) in the chair.
The Chair: Welcome, colleagues, invited guests and members of the
general public who are following today's proceedings of the Standing Senate
Committee on Legal and Constitutional Affairs. We are meeting today to complete
our consideration of Bill C-37, An Act to amend the Criminal Code, dealing with
victim surcharges. Later today the committee will continue its consideration of
Bill C-309, An Act to amend the Criminal Code (concealment of identity).
Panel 1 will proceed shortly with a clause-by-clause consideration of Bill
C-37. We do have officials from Justice Canada with us today, and I appreciate
that there will be, as I understand it, some technical questions. I will invite
you to the table right off the top because I know there are questions coming.
We have Carole Morency, Acting Director General and Senior General Counsel,
Criminal Law Policy Section, Department of Justice, and Pamela Arnott, Director
and Senior Counsel, Policy Centre for Victim Issues.
Senator Fraser: Chair, I do have a question for the officials. Would
it simplify your life if I asked it before we got into the clause-by-clause
consideration? It would apply to more than one clause.
The Chair: That is fine.
Senator Fraser: Thank you, chair.
Good morning, Ms. Morency and Ms. Arnott. How nice to see you again.
I have just one question, and it starts with clause 3, wherein the proposed
wording says, "An offender who is convicted, or discharged under section 730, of
an offence under this Act or the Controlled Drugs and Substances Act . . ."
Suppose you have an offender who is convicted on more than one charge related
to a given event so that they are proceeding simultaneously, so to speak. At the
conclusion of the proceedings, the judge says, "Guilty on all counts." Is
there then one victim surcharge, or is there a victim surcharge for each count
or each charge?
Pamela Arnott, Director and Senior Counsel, Policy Centre for Victim
Issues, Justice Canada: Thank you for your question. I realize that your
witness yesterday stated that there would be only one victim surcharge. That is
our understanding, but I recognize there is some discussion about that point in
the legal community.
Senator Fraser: I know some lawyers believe it is one per charge. You
are telling me that the law as drafted is ambiguous?
Ms. Arnott: I am saying that, as lawyers like to do, there is
discussion about how things are applied.
Senator Fraser: Can you explain to me why, as it is now drafted, it
would be taken to a single charge even if there were more than one offence?
Ms. Arnott: It is my understanding that the way the courts have
interpreted this is that it is the charges that the court is dealing with at the
Senator Fraser: Do you think there is jurisprudence about this?
Ms. Arnott: I do.
Senator Fraser: You cannot do it in time for clause-by-clause, but
perhaps you could send us references on that matter?
Ms. Arnott: Yes.
Senator Jaffer: I asked a question yesterday. If there is a fine, say
$1,000, that is paid 15 years later, it may become substantially more. With the
surcharge, does it stay $100 if it is paid ten years from now?
Ms. Arnott: The answer is found in the regulations that each province
and territory has put forward in how they administer their collection of
surcharges. I will pull up some of regulations, if you do not mind.
Senator Jaffer: It will suffice for my benefit if you say that some
will stay at $100 and some will depend on the regulation. Is that correct?
Ms. Arnott: Yes, that is the answer.
The Chair: Are there any further questions before we get into
clause-by-clause? Seeing none, it is agreed the committee proceed to
clause-by-clause consideration of Bill C-37, An Act to amend the Criminal Code?
Hon. Senators: Agreed.
The Chair: Agreed. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the alternative title, stand
Hon. Senators: Agreed.
The Chair: Agreed. Shall clause 2 carry?
Senator Fraser: On division.
The Chair: Carried, on division. Shall clause 3 carry?
Some Hon. Senators: On division.
The Chair: Carried, on division. Shall clause 4 carry?
Some Hon. Senators: On division.
The Chair: Carried, on division. Shall clause 5 carry?
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall Clause 1, which contains the alternative title, carry?
Hon. Senators: Carried.
The Chair: Carried. Shall the title carry?
Some Hon. Senators: Carried.
The Chair: Shall the bill carry?
Some Hon. Senators: On division.
The Chair: Carried, on division. Is it agreed that I report this bill
to the Senate?
Some Hon. Senators: On division.
The Chair: Agreed, on division.
Thank you again, Ms. Morency and Ms. Arnott, for your appearance here today
and for your assistance.
We will continue with our examination of Bill C-309 in
respect of concealment of identity. I would like to introduce Mr. Michael
Spratt, from the Criminal Lawyers' Association; and Mr. Ryan Clements, from the
Canadian Council of Criminal Defence Lawyers.
Welcome, gentlemen. Mr. Spratt, I believe you will lead off with opening
Michael Spratt, Representative, Criminal Lawyers' Association: My name
is Michael Spratt. I am a criminal defence counsel. I practise criminal defence
exclusively with the firm of Webber Schroeder Goldstein Abergel in Ottawa. I
appear before you today on behalf of the Criminal Lawyers' Association. As you
are probably aware, the Criminal Lawyers' Association is one of the largest
legal organizations in Canada with over 1,200 members. We advocate for criminal
justice and civil liberties. We are often consulted by committees such as this
committee. It is always an honour to appear before this committee to deliver our
The Criminal Lawyers' Association is in favour of legislation that is modest,
necessary, fair and constitutional. Unfortunately, the Criminal Lawyers'
Association cannot support Bill C-309 in its current form in that, in our
submission, it is not necessary; it is not modest or restrained; it poses some
constitutional issues; and it is ripe for abuse. I would like to address each of
those issues, dealing first with necessity.
Section 351(2) of the Criminal Code provides a complete answer for the
problem that is sought to be corrected through Bill C-309. Wearing a mask is
already unlawful and prohibited if one has the intent to or is committing an
indictable offence. That is already a crime. Of course, a "riot," as defined
in section 65, is, by its very nature, an indictable offence. If one is masked
and is participating in a riot, section 351(2) applies; full stop. There is no
need for further legislation.
Of course, dealing with unlawful assemblies is different in nature in that
there is a fear of tumultuous activity; but there has not been actual
manifestation of that activity yet. If there is manifestation of that activity,
the unlawful assembly, by its very definition, turns into a riot. However,
police are still able to charge one under section 351(2) with wearing a mask and
participating if they are participating in an unlawful assembly. One must
remember that to attract liability under section 351(2), one must have only the
intent to commit or be committing an indictable offence. Of course, indictable
offences include mischief in the applicable property-related offences that are
at the crux of what the legislation through unlawful assemblies and riots is
trying to prevent.
Contrary to what Member of Parliament Blake Richards told you yesterday,
section 351(2) is not hard to apply. If one is participating in a riot, it
applies; full stop. If one is participating in an unlawful assembly, holding a
brick, besetting a car, damaging property, aiding, abetting or otherwise
encouraging activity, section 351(2) can be applied by the police officers.
I will deal next with the constitutional questions that are apparent in this
bill. If the intent is, as it seems through this bill, to criminalize wearing a
mask at an unlawful assembly or at a riot while one is merely present or just in
the vicinity and perhaps just acquiescing to what is going on but not directly
participating, it is our submission that there are some constitutional issues
that will befall the legislation. As is trite in criminal law, mere presence
does not automatically equal criminal liability and acquiescence is not
I assume that some of the cases that provide the foundation for this bill
contemplate that one's mere presence or passive acquiescence at an unlawful
assembly or at a riot can attract criminal liability. I would ask the committee
to consider carefully the context of those cases, the facts of those cases and
where those cases were decided. These cases come from the lower courts. The
Supreme Court has not weighed in on this issue, and those cases were all decided
without a rigorous Charter analysis, even before the Charter was enacted in many
cases as far back as 1930.
Given the evolution of the Charter and the legislation therein, legitimate
constitutional issues arise by criminalizing one's mere presence at such a riot
or unlawful assembly. There are also Charter issues implicit in this bill that
arise when one considers issues of freedom of expression and other legitimate
reasons to be at such an assembly or to conceal one's identity at such an
assembly. That is a bit outside my scope of expertise as a criminal law
practitioner, but, I submit, it is something that the committee should consider.
The backdrop to all of this is that if one is participating, aiding,
abetting, encouraging, carrying a brick, destroying property or encouraging
others to do so while wearing a mask, they are already committing an offence.
There is the issue of potential reversals of burden in this section as well that
may attract constitutional issues. Our concerns arise from the constitutionality
and from what I have discussed against the backdrop of the potential practical
problems that are inherent in this proposed legislation. Contrary to and with
respect to Member of Parliament Richards' testimony yesterday, not all people
who have their face covered in such situations are criminals. This bill will not
assist in identification of such individuals because, by their very nature and
activity, they are wearing a mask; and that incurs liability. It is a bit of a
I would like to make three points about some practical problems. One of the
justifications being put forward to support this bill is that it will provide a
deterrent to those who want to wear masks. My questions are: Does it? Will it?
Is there evidence of that? The criminal law is a unique and carefully crafted
control on members of society. It is the Criminal Lawyers' Association's
position that before one changes the criminal law and before one criminalizes
activity, there should be evidence to support such changes. I have not seen any
evidence presented at this committee or at a committee of the House of Commons
that this section will provide any deterrent value. I raise that as a concern
because sections 63, 64, 65, 351(2), and the mischief sections under section 430
exist and provide a deterrent. The questions are: Will this extra section, given
the problems I have outlined, provide an additional deterrent? Is there evidence
The practical problems that I would like to raise are as follows: Police
officers are responding to situations, such as those that happened in Vancouver,
Toronto and Montreal. The G20 riots, for example, were stressful and dynamic
situations for police; and that is recognized. Reports like the G20 report can
reveal problems with how the police can interact with members of such
assemblies. The practical problem is: How is a police officer to evaluate what a
lawful excuse is under this proposed legislation? How is a police officer to
evaluate the mens rea of someone that they are arresting under this bill?
If one is protesting legitimately at the back and is wearing a mask and a
problem arises at the front of the protest that changes the nature of that
demonstration, it is my submission that there will not be a rigorous analysis of
police on the ground at the time about mens rea issues. We have seen that
instead there are preventive arrests of people where people will be detained,
have their liberty curtailed, and will be charged. Any issues will be sorted out
later in the process by the courts. This leads to criminalization,
stigmatization and expense for all participants in the justice system.
There are some real practical problems with the implementation of this bill.
It is our submission that there is a real danger that the bill may be used for
preventive arrest. Some of the commentary at the committee of the House of
Commons sort of reveals this. Arrests may then occur prematurely; and those
situations that may not be captured under this will be sorted out later, after
the person has been arrested, charged and had their liberty curtailed.
It is because of the problems in the implementation that I have outlined and
the constitutional questions that this bill raises, and, most important, because
of the complete lack of necessity, in my submission, of this bill, given the
current Constitution and the Criminal Code, that the Criminal Lawyers'
Association, although the premise and the goals of the bill are laudable, cannot
support it as currently drafted.
The Chair: Thank you, Mr. Spratt. Mr. Clements, do you have an opening
Ryan Clements, Representative, Canadian Council of Criminal Defence
Lawyers: Mt name is Ryan Clements and I am delighted to appear today on
behalf of the Canadian Council of Criminal Defence Lawyers, an organization
founded in 1992 to offer a national perspective on criminal law issues with a
view to ensuring the preservation of constitutional principles and to seeing
that the criminal law develops in a practical and principled manner.
I am grateful to have the opportunity to address the Senate today and to
possibly assist you in your deliberation of this bill.
I can indicate I am a practising criminal defence lawyer as well. I was
delighted to be given the opportunity to be here because, when I decided to
leave the Crown attorney's office — I worked for the Public Prosecution
Canada at the outset of my career — I became a criminal lawyer in Toronto in
June of 2010 and indeed encountered the G20 in a very real sense through my
professional responsibilities. Clearly, this legislation as proposed arises out
of the exceptional circumstances that the G20 posed for law enforcement, as well
as the Vancouver Stanley Cup riots.
With that in mind, I wish to chime Mr. Spratt's submissions insofar as the
CCCDL has concerns with the legislation as proposed and I hope to offer some
insight into why that is. Many commentators have indicated that this bill
appears to be redundant and unnecessary, specifically as it relates to the
indictable offence of taking part in a riot. That view is shared by the CCCDL.
A similar comment that should be noted is that the common law already
provides for issues relating to these types of offences in sentencing. Even if
someone is not charged under section 351(2) of the Criminal Code with wearing a
disguise while committing an indictable offence, it would clearly be a relevant
factor that aggravates the underlying offence upon sentencing. That was
something that was seen widely during the G20. Even if the Crown did not proceed
or the charge of wearing a disguise was not laid, it would be an aggravating factor that
would come out through the administration of justice.
A further point also needs to be made about why this legislation is
unnecessary. To the extent that it provides further authority for investigative
powers to the police, the police already have those powers in the common law and
under the Criminal Code. Section 495 of the Criminal Code authorizes the police,
without a warrant, to arrest individuals who are either committing an offence or
about to commit an offence with respect to indictable matters or who are
committing an offence with respect to summary conviction matters. Furthermore,
the police have a common- law power of investigative detention that can be
utilized where there are reasonable grounds to suspect an ongoing offence. The
point that needs to be made is that a person who is taking part in a riot or
being a member of an unlawful assembly becomes no more arrestable or detainable
simply because they are wearing a disguise. The police already have the tools,
both through statute and common law, to properly investigate these matters.
Mr. Stribopoulos, who gave evidence before the house committee with respect
to this proposed legislation, indicated that this is a law enforcement problem
largely; that is, there is no legislative gap with respect to the laws we
currently have in Canada.
One of the additional concerns in that regard is if this law is unnecessary,
then will putting it in place cause further problems? That is, do the costs
outweigh the benefits? It seems that they may, for the following reasons.
As it currently is drafted, the legislation is unclear as to the mental
requirement or the mens rea for the particular offence. The
Honourable Michelle Rempel, in speaking in the house about this bill, indicated
that the bill would be a specific intent offence, but the legislation as
currently drafted does not seem to indicate that, which is of concern. Seeing
that, as I understand the legislation, it is aimed at protesters engaged in
criminal conduct who conceal their identity in order to evade criminal
liability, being the specific purpose, as was pointed out by Mr. Spratt and
likely numerous other individuals, there are many other reasons why people may
be wearing masks or other items that happen to cover their face — through
expressive activity, through the desire for anonymity unrelated to criminality,
because it is winter outside and it is cold, for cultural reasons or for safety
A related issue as well, and I think this was touched upon with respect to
Mr. Spratt's comments, is that the legislation as it currently is conceived
possibly invites difficulty with respect to both its enforcement on the ground
level as well as its application in the courts insofar as the provision dealing
with unlawful assembly is vague. It is difficult to know when a lawful assembly
turns into an unlawful one and then a riot. It is a point somewhere between a
lawful assembly and a riot. What is particularly important in this regard, and
this relates to what the Supreme Court has told us about laws that are difficult
to discern, is that it may not give sufficiently fair notice to citizens to know
when their jeopardy is at stake, and this is particularly the individuals who
are in a large, peaceful march and an aspect of that or a part of that march
takes a different character. The citizens or individuals who are part of the
otherwise lawful part of the march may not know that their jeopardy has suddenly
changed. It would be grievous for those individuals to experience arrest, let
A similar concern arises with the fair notice notion insofar as it is
important for law enforcement officials to know how to apply it; that is, is
there a sufficient limit on how this law will be applied?
Subject to questions that may be asked, it seems that a more simple solution
to the issue that is at hand would be to simply allow for the unlawful assembly
offence to be a hybrid offence. If indeed the concern is about punishment, then
section 351 is a ten-year or less maximum, but of course there is the ability to
change the punishment provisions, and any concern with respect to the unlawful
assembly provision staying as a summary conviction matter could be alleviated by
creating it as a dual procedure offence.
Finally, I wish to simply just chime the concerns about the chilling effect
that this might have on people's willingness to participate in marches in light
of the difficulty with respect to the fair notice concerns that I have
mentioned. Indeed, we do not want individuals to self-censor their behaviour in
this context. A person who may have otherwise attended a march wearing the
caricature of a political figure may feel unsafe to do so. In light of the fact
that this legislation is almost entirely unnecessary from the point of view of
the organization that I speak on behalf of, it is too great a cost to have that
type of fear for people who wish to exercise their rights to expression and to
Those are my submissions.
The Chair: Thank you, Mr. Clements. We will begin the questions with
Senator Fraser, the deputy chair.
Senator Fraser: Good morning, gentlemen. Thank you both for being
here. It is often the shortest bills that raise some of the most extraordinary
questions. I found what you both had to say extremely interesting.
I wonder if either or both of you would care to tell me how you think the
courts, assuming this becomes law, will interpret in this context the words "without lawful
Mr. Spratt: I think the first issue that will be litigated before the
courts is that is obviously a reversal of the burden of proof. That exists in
other parts of the Criminal Code. In some contexts, it has been found to be
constitutional. In other contexts, it has raised constitutional issues. In the
context of this new legislation, that will need to be evaluated given the
liability, the punishment and the background factors that are involved. I would
hope that the courts would give a broad and liberal definition to what a lawful
excuse is. The part there may be some difficulty with, and this goes to the
enforcement aspects as well, is the precise nature of lawful excuse. Does one
need to have the intent of the group, share that intent? Is it a lawful excuse
simply to desire to be anonymous? We do not always see the freedom of expression
and other constitutional issues that are imported into the analysis. If we are
just looking at search and seizure and things like that, we do not have freedom
of expression and these other constitutional principles that are wrapped in.
However, I would hope and think that given the other constitutional values that
are in play here that the definition or the judicial interpretation of that
phrase would be broader and more liberally construed than we see in other
sections of the code.
Senator Fraser: Did you want to add anything, Mr. Clements?
Mr. Clements: I do not think I can add anything of substance to Mr.
Senator Fraser: Something I found a little bit bemusing, but this may
just reveal my ignorance, is that, when it comes to the unlawful assembly
portion of this bill, unlawful assembly is a summary offence, summary
conviction. However, wearing a mask would be indictable and could get you five
years for just having committed a summary offence. Is this unusual? Is this an
unusual way to proceed? Does it bother you in any way, or is it something that I
just have not come across before?
Mr. Clements: I can indicate that in advance of attending today the
council shared their input, and of concern to numerous people who were
consulted, lawyers across the country, was the elevation from a straight summary
conviction offence, that is, a maximum of six months' incarceration, to an
indictable offence; and we are just dealing with maximum penalties here. What
the court metes out may differ.
Senator Fraser: It is not a mandatory minimum.
Mr. Clements: That is right. Indeed, it is a twelvefold increase
simply for having the mask. You can imagine situations, reasonable
hypotheticals, for example, where it would be hard to imagine how that conduct
in a real scenario would be 12 times more serious, is perhaps the best way I can
put it. It strikes to be very severe for the simple added element.
As I indicated, it is an aggravating factor on sentence, and so if someone is
convicted of being a member of an unlawful assembly, their jeopardy is of six
months incarceration, and there is no question in my mind that any Crown
attorney would lead evidence, or it would have been led at trial, to have that
factor being taken in on sentence.
Mr. Spratt: That notion of what would be a summary offence turning
into or leading to a conviction for what could be an indictable offence lends
support to my interpretation that there would be constitutional issues with the
bill as well, because you could have someone who is not participating in the
unlawful assembly or riot at all; they are merely present.
Perhaps, as I think good citizens should, they want to observe what is
happening in their community; they want to record names of who is doing what;
they want to be a witness to what their peers are doing, and for whatever
reason, and there are good reasons for doing so, they want to be anonymous in
doing that. For simply being there, not causing any property damage, not
encouraging anyone, not helping anyone, and in fact doing what I submit is a
good thing, being witness to what is happening in their community, they are now
guilty of not a summary offence but an indictable offence; and we are relying on
the discretion of police officers and the discretion of Crown attorneys. They
are good and honourable people, but their discretion is not reviewable, their
discretion is not recorded, and ultimately there is no account for that
discretion. We are relying on their discretion about whether someone should be
charged and face that extreme liability in those circumstances.
That illustrates what could be the constitutional problem here and lends
support to the fact that there are constitutional issues that would arise with
Senator Plett: Thank you, gentlemen. I have been led to believe that
other jurisdictions seeking to address similar situations have in fact enacted
similar legislation. France, the United States and the United Kingdom have taken
action, and their laws have been upheld by the courts. If their laws have been
upheld by the courts, they believe this is a good thing. Do you know about these
jurisdictions and how it is working there?
Mr. Spratt: I have of course never practised in any of those
jurisdictions, but the starting point I come from is it is very dangerous to let
other jurisdictions guide us on important criminal law policies. Had we done
that over the last 10 years, we can look at some of the disastrous results that
have happened in the United States.
Of course, Canada has different legislation and a different framework for
evaluating the constitutionality. In the United States, which is a different
criminal set-up in that each state is responsible for their own criminal law to
some extent, there is a different analysis, and I would be wary of letting those
jurisdictions drive our policy. What works in France, what works in the United
States, what is lawful there may not pass muster in our courts here.
Senator Plett: I, of course, would believe that if someone else does
something good let us at least take a look at it.
Mr. Spratt: You are starting from the presumption that it is good.
Senator Plett: That is why I asked you whether you knew it was. Thank
At the G20 protests in Toronto, we know that rioters caused at least $2.5
million in damages, destroying four police cruisers, injuring about 100 police
officers and dozens of innocent citizens; yet, to date, fewer than 50 offenders
have been convicted. We have been led to believe that one of the main reasons is
they have not been able to be identified. In your expert opinion, why do you
believe there have been so few convictions in that situation?
Mr. Spratt: The same is true in the Vancouver riots. Of course, those
were extreme situations that should be dealt with appropriately and there should
be punishment meted out. Of course, the obvious reason why so few people are
identified is because some of them were wearing masks, which makes it hard to
identify. The problem is this bill does not correct that. This bill sort of
makes it doubly illegal to do what was already illegal and what did not deter
them in the first place. This bill will not give cameras superpowers to see
through masks, and it will not correct the problem of identification.
Senator Plett: The reason they cannot be identified is because they
were wearing masks. Thank you very much.
Senator Jaffer: Thank you for being here. You both have already
mentioned this, but what really concerns me is that this bill is not necessary.
We already have it in the code. I have been thinking where will this lead us? If
this bill becomes an act, does that mean that for another unlawful act a lawyer
could say: Well, Parliament specified for rioting but has not specified for any
other act, so that does not get covered, if someone was wearing a mask maybe for
I feel that if you have two of the same, we in fact will run into more
problems than we have now. May I have your comments?
Mr. Clements: I will take a stab at that. You are right to have
concern. The rationalization of the criminal law moves towards having offences
that are able to contemplate numerous forms of scenarios. An example would be
the theft provision. I know that there are archaic aspects of the Criminal Code
that include things like theft of cattle or theft of an oyster bed, but I think the
history of the criminal law is moving towards having simply theft. There may be
good reason for that, not just because it makes logical sense; it also assists
police officers. I believe Mr. Stribopoulos made this comment in his submissions
to the house. It allows police officers to know what to charge, and it
circumvents the problem of overcharging. It is theoretically possible that if
this law is enacted and someone finds themselves within its purview, they could
be brought to court both having been charged under this new proposed law, but
also having committed an indictable offence while wearing a disguise.
Overcharging fees can be a problem. It certainly has the potential to cause
further delay in an already overburdened court system. There is a lot to be said
for simplifying the law, which not only assists police and Crown prosecutors,
but it also assists individuals with respect to the fair notice comments I had
made earlier. I do not think it is necessary for criminal law to articulate
directly all the various permutations of a single type of offence.
Mr. Spratt: I echo the point that the Criminal Code is currently
inches thick. It is expanding rapidly, and it is simply impossible to
criminalize or to legislate against every single possibility. We expect citizens
to know the law, and we expect police officers to know the law, and the more
complex needlessly, in my submission, you make the legislation and make the
Criminal Code, the more problems arise, leading to potentially unintended
consequences such as the scenarios you have raised.
Senator Jaffer: One of the big concerns is around the few charges laid
in Toronto and Vancouver and what should have happened. The challenge in dealing
with public rights is whether there is a lack of legislation. Is there a
challenge in enforcing existing rules? What, in your opinion, is the challenge?
Mr. Clements: This partly addresses the senator's earlier question,
which it seems to me that once exceptional circumstances like the G20 or the
Stanley Cup riots take place, it is unsafe for police to enter into those crowds
and make arrests. There are good policing reasons for that.
I will try and answer your question as best as possible, but it seems to me
that having a law that makes this doubly serious with respect to wearing a
disguise will not change the behaviour of individuals who have already decided
to enter into a riot. That is, there will not be rioters who say, "Now that I
am rioting, I should be aware of this other law, so I will just riot without a
Part of the reason there is difficulty with enforcement is because it is
unsafe for law enforcement officers to do so once the matter gets to the
exceptional circumstances of the G20 or the Stanley Cup riots, but also there is
no likelihood whatsoever that this legislation will have an effect on those who
choose to riot in those exceptional circumstances, for them to not conceal their
The Chair: Senator Jaffer, I have a supplementary on this. What has
driven this legislation, I suspect anyway, is the frustration of certainly
retailers, who suffered significant loss as a result of both of the riots we are
discussing here, but then when they contrast that with the response in Great
Britain where charges were laid and people were before the courts within a very
short period of time, with hundreds of people arrested — I think it was within
three weeks — contrast that with Toronto and Vancouver where they are struggling
to lay charges after a year, I think there is a level of frustration out there
that this legislation is attempting to address. It is perhaps not the answer,
but we look to you both as to whether you can give us any input with respect to
why these stark differences exist with respect to reacting to incidents like
Mr. Spratt: We of course share the goals of this legislation, and the
property destruction, the chaos that was caused needlessly in many respects by
the actions of the people involved is awful.
The Chair: That is not answering my question. We all understand that.
Mr. Spratt: Yes. However, the problem is, as Mr. Clements has
outlined, that this conduct of being masked and causing chaos is already
The Chair: We understand that. I asked you a specific question. If you
cannot answer it, that is fine.
Mr. Spratt: The answer is this: This further prohibition on wearing a
mask, which we say is redundant, will not assist in identifying anyone.
The Chair: You are not responding.
Mr. Spratt: I am responding to the question. The response from our
courts, if you look at the sentencing decisions that come out of old city hall
for young people with no records who participated in these events is custody and
jail time; they are being punished.
Why there were not more arrests, I cannot say. Why the Vancouver police did
not lay more charges, I cannot say. All I can say is the charges that were laid
would be laid regardless of this. The punishments that were meted out are very
serious and severe, given our law would still be imposed regardless of this
legislation. This legislation would not, in our submission, deter conduct —
there is no evidence of that — and it certainly would not help with
Mr. Clements: If I may, Senator Runciman —
The Chair: If you can deal specifically with my question.
Mr. Clements: I will attempt to just from the Toronto perspective. The
G20 summit weekend constituted the largest mass arrest in Canadian history.
There was no problem with arresting individuals on that weekend, more so than
during the War Measures Act, as I understand it. If there is a concern in the
public that people —
The Chair: I think the public concern was centred around Vancouver
primarily, but I am not that familiar with the Toronto situation.
Mr. Clements: A lot of concerns that arose out of the Toronto weekend
were that it was arrest first and ask questions later. There were a lot of
people I know who went through the criminal process — indeed, they were brought
into court on numerous occasions before decisions were made to simply step away
from the prosecution and withdraw the matter. I think it was the converse
problem that occurred in Toronto.
Now, there may be individuals who escaped criminal liability that weekend,
but I can indicate that the Crown attorneys — the guns and gangs unit in Toronto
particularly — did an exceptional job ensuring that many individuals were duly
prosecuted. Most were convicted, and as pointed out by Mr. Spratt, the sentences
were entirely different than we see for those types of first-time offenders,
youthful offenders, as they tended to be.
The Chair: Perhaps we can pursue that with the Vancouver police when
they appear before the committee.
Senator Dagenais: Thank you to the witnesses. I spent 39 years as a
Sûreté du Québec police officer. I was on the riot squad during the 1990 crisis
and during the Summit of the Americas in 2001. I can tell you that it did not
take a lengthy assessment to distinguish between a peaceful demonstration and a
riot. I obviously made some arrests in my time.
That being said, the situations in Vancouver, Toronto and Montreal are
striking examples of just how inadequate the current provisions are. The law
should serve as a deterrent, and the bill we are trying to pass is a provision
that has the benefit of being sufficiently clear, stating when an assembly is
lawful and when it is not. People must remove their masks during protests, and
they can be arrested if they refuse to do so.
The City of Montreal even passed a bylaw under which the police notify
participants when a protest becomes unlawful. And the notice is clear, even for
those who do not want to understand it.
In exceptional circumstances, why do you see it as a disadvantage to better
protect property and citizens from criminals who are protesting unlawfully?
Mr. Spratt: The issue that we have with the legislation is this: The
situations that you have described — Vancouver, Toronto and Montreal — those
were riots. Those were indictable offences. Wearing a mask and participating in
those events attracts criminal liability and an indictable offence under section
351(2). This legislation adds nothing to that. Full stop; nothing. It is already
there. Simply saying something twice does not improve what is a problem.
Senator Dagenais: I am not satisfied with that answer; it does not
necessarily answer my question.
Mr. Spratt: I have yet to have it explained to me, through prior
testimony or any of the questions that have been asked, what value-added
benefits this legislation brings over what is currently there. If this
legislation was in place during Vancouver or Toronto would it have changed
anything? I would suggest that is the question that should be asked and the
answer is no. It would not have changed anything. It is illogical to suggest
However, what we do have through this legislation is that there will be
constitutional challenges to this legislation. It is vulnerable there. That is
my submission. That is my expert submission on that point, and there is the
deleterious and potentially dangerous side effects of this legislation that deal
with people who do not have the mens rea and have lawful excuses. This
legislation could result in their arrest, prosecution, suspension of their
liberties and violation of their Charter rights that would not have arisen
before. Perhaps I am wrong but I fail to see how this legislation would have
changed Vancouver or Toronto.
Senator Dagenais: There is a saying that goes, you need a belt to hold
up your pants; sometimes, however, you need to throw on a pair of suspenders as
well. That may be what we are doing today with this bill.
Senator Baker: Senator Dagenais should remember in his knowledge as a
former police officer the riot section of the Criminal Code that says a police
officer who receives notice of a riot within his jurisdiction, and without
reasonable excuse fails to take all reasonable steps to suppress the riot, is
guilty of an indictable offence and liable to imprisonment for a term not exceeding
I point that out to say that in the code we already have some very serious
measures to try to prevent riots from taking place. Go to the previous
section to that, where we can imprison the police officer if he does not take
action. You can go to a section where it says the mayor or reeve of a city or
town — the mayor Montreal or Vancouver — could have declared to disperse the
riot. If they did not do that, the sentence is life imprisonment for all those
who do not disperse from the riot. It is hard to understand how we could
introduce something to act as a deterrent. We have the deterrence already in the
When you make a summary conviction offence, one that can be prosecuted either
summarily or indictably — a hybrid offence — it is assumed that it is indictable
when you are arrested. Did you also mean to make the point that someone who is
guilty of perhaps a summary offence will be considered under this legislation to
be guilty of a hybrid offence, which says that automatically you must be
registered with your fingerprints and a shot of your face under the
Identification of Criminals Act and therefore it is a leap to go from summary up
to either one?
Mr. Clements: Yes, because I raised that. I meant to
suggest that the simplest way to apparently do what the legislator — in
particular a private member — is attempting to do with this legislation, would
be to create a dual procedure offence for the unlawful offence under section 66.
I say that because we already know — and if we do not I am hoping that we will
already know at some point — that with respect to the riot offence this law does
nothing. It is an indictable offence thus allowing for the wear disguise
provision under 351 to be engaged. Currently, it is not available for the
unlawful assembly offence to have the "wear disguise" unless, as pointed out by
Mr. Spratt, most scenarios will involve collateral criminal conduct, mischief or
other activity that is hybrid as well, thus allowing for "wear disguise." I
made it clear already that the common law will certainly be taken into account
with respect to aggravation.
My suggestion, rather than create new criminal offences already accounted for
in a very unwieldy document that is the Criminal Code, would be simply a more
elegant and less intrusive way of dealing with a perceived gap, namely that
people who are members of an unlawful assembly cannot also be charged with
wearing a disguise.
Senator Baker: I will ask you this with regard to the chair's question
on Vancouver. There were in excess of 100 arrests made and charges laid in that
particular case and the punishment meted out was quite substantial in that
particular scenario. Charges were laid and then the police have to collect the
evidence after the fact. Social media was used, the records of the texting were
used, the production orders that we passed based on suspicion were used by the
police to get the text messages. There has been a recent judgment by the Supreme
Court of Canada regarding text messaging availability to the police. Do you have
any comment as to what effect that will have or have you had a chance to examine
that judgment that was made two weeks ago?
Mr. Spratt: It is an interesting judgment. I do not see it having much
bearing on this issue though. However, I think it illustrates that the police
are empowered with a great deal of investigative tools. There are cameras. We
leave a trail everywhere we go of what we do and who we do it with; the tools
exist. Embracing those tools to catch and prosecute the perpetrators of
disruptive and criminal activities is completely appropriate. What I think is
unfortunate is that this legislation may be a missed opportunity. This time this
expense could be used productively to add something because essentially our
submission is this does not add. This does not assist.
The Chair: Thank you.
Senator McIntyre: Gentlemen, thank you for your presentation.
We have section 351(2) in Bill C-309 broken down into two sections, 65 and
66. It appears to me that for law officials, the difference between section
351(2) as it now stands and Bill C-309 lies on the burden of proof. As we know
in a criminal trial, the onus of proof is on the Crown and the Crown must prove
its case beyond a reasonable doubt. Under section 351(2), the Crown has to prove
that the accused had the intent to commit a specific indictable offence
especially in the case of a riot, therefore calling for a higher burden of proof
On the other hand, Bill C-309 appears to call for a slightly different burden
of proof, in my opinion, with the Crown proving intent to conceal identity
rather than the intent to commit a specific indictable offence. What are your
thoughts on this?
Mr. Clements: I will briefly try to address that. What you need to
keep in mind about the way the current legislation is proposed is that in your
example of the wear a disguise offence under section 351(2), the Crown has to
prove that a specific indictable offence was committed or with the intent to
commit a specific indictable offence. In the context we are talking about, that
specific indictable offence would be the riot, right? I think it is fair to say
that would be the way section 351(2) would apply in the context of a riot.
Senator McIntyre: Exactly.
Mr. Clements: I think it is clear from the way the bill is drafted you
do not even get to the new provisions unless you prove that a person was taking
part in a riot. It is the same thing.
The Crown still has the obligation to prove that the person took part in a
riot, and as the case law has developed in that section, it has to prove that
the person had knowledge that the situation had turned into a riot and was
participating in the riot. This proposed section is only engaged after the same
proof has been discharged by the Crown in the example you have given. There is
If there is a concern that, somehow, it is too hard to prosecute the "wear disguise," I believe it is belied by the fact that this section requires you to
prove first that the person was participating in a riot. I will add the further
concern already indicated. All things being equal, I think, this section
provides for a potentially very problematic reverse onus that does not exist in
the instance of section 351.
Senator McIntyre: Reverse onus in the sense that the accused would
have to prove an unlawful assembly.
Senator Fraser: No, a lawful excuse for the mask.
Mr. Clements: That is right, a lawful excuse. All things being equal,
as I endeavoured to explain earlier, another part of this legislation, which is
different, is that it is actually quite problematic, potentially, from a Charter
point of view in terms of imposing a burden to prove innocence on an accused
Senator Joyal: Yes, but on the other hand, the same reasoning does not
apply in the case of an unlawful assembly because it states that the unlawful
assembly is a summary conviction offence.
I would like to give you a scenario. Take the case of Montreal: I participate
in an assembly whereby the group has given the itinerary to the police, and so
it is lawful. Suddenly, those leading the manifestation go out of the street
plan that was originally accepted by the police, and we go on another street.
Then it becomes unlawful. In the lawful assembly, I was wearing the mask of a
beaver. Suddenly, because the lawful assembly turns into an unlawful assembly,
because we are on another street, I suddenly become guilty of an offence.
However, I am not covered by section 351(2) because it is everyone with an
intent to commit an indictable offence, and I had no intent to commit an
indictable offence. I was wearing a mask in a lawful assembly and not just
because we have crossed another street we have become unlawful.
The new section would make the presumption that I am guilty of an offence
just because I have crossed the line of being a member of a lawful assembly that
becomes unlawful. The presumption in this is that I might be charged with an
indictable offence because I was wearing that mask.
There is the question of proportionality that Senator Fraser has raised,
that, in my opinion, is problematic, but in that specific case, I do not think I
am covered or the police could charge me under section 351(2).
Mr. Spratt: That is right. That is the one scenario, assuming you are
not carrying a brick or anything like that. That is the one scenario.
Senator Joyal: No, I am just a member of the assembly. I have put on
my mask of a beaver.
That is why I think this bill covers something that is not covered by section
351(2), unless I cannot explain that I have a lawful excuse to wear that mask
because I am a Canadian patriot, and I want to be shown in the assembly as being
Mr. Spratt: You are right, senator, that is the one area that is
currently not covered but would be covered here. The problem is the
disproportionality of the punishment. The problem is, I think, a proof of
mens rea: Did you know it had turned into a unlawful assembly, and if you
did know that but you are merely present, not the one leading the march or
directing it, the constitutional issue arises at that point because you are not
committing what would be otherwise an offence. There is no nefarious motive on
your part. Even if they have proved that you did know it had veered off course
but you were just standing there, you would still be guilty merely because you
were present and doing nothing else. That is the scenario, the reasonable
hypothetical that could expose this legislation to constitutional challenge and
operates in a manner that is not restrained and not fair.
Mr. Clements: I agree with those comments. If I may just indulge,
The Globe and Mail in a November 1, 2012 editorial said how would police
differentiate between legitimate troublemakers in a mess and an innocent person
swept up in events. In the heat of the moment, would they even bother to try?
That is precisely the concern. With a law like the unlawful assembly law,
which is vague and hard to apply by everybody — the citizen to whom it applies,
the police who enforce it and the judges who apply it — it is difficult in the
context that you gave to imagine a person being guilty of anything in that
scenario, yet being swept up because of the authorization of power that is being
contemplated with this private member's bill.
Mr. Spratt: The scenario that you have raised is not the scenario — I
do not think it is, from reading the testimony of others — that this bill seeks
to remedy. That is not Toronto, G20; that is not Vancouver. That is not what
this bill is seeking to remedy, but that is a problem that this bill raises.
The Chair: We will have to move on.
Senator Batters: Mr. Clements, I want to clarify this: I thought I
heard you say earlier that it would be preferable if the new offence dealing
with unlawful assembly was a hybrid offence, but is the new offence not?
Mr. Clements: The current offence, of course, is a straight summary
matter. The new offence is defined as a "dual procedure offence."
Senator Batters: That is all I wanted you to clarify, that you
acknowledge that it is. I see what you are saying, that when proceeding with
those types of things, the assumption off the bat is that it would proceed to
indictable; however, you are acknowledging it is a hybrid offence as drafted in
Mr. Clements: Yes, but the point I am making is, if you leave aside
the proposed legislation and you just convert the existing legislation into a
dual procedure offence, then you allow for section 351(2) to be applicable to
the context of a unlawful assembly, seeing that the apparent concern is that
there is a perceived gap with respect to the unlawful assembly and the ability
to have an offence relating to wear a disguise. A much more elegant and,
frankly, Charter- compliant way to do it would be to turn the unlawful assembly
offence into a dual procedure offence.
Senator Batters: Are you saying then, if that were the case, you would
be supportive of that?
Mr. Clements: I come from the position that to have clarity in the law
is advantageous. I come from the position that laws that potentially invite
Charter challenges should be discouraged, and I think there are sufficient
problems with this legislation as it relates to the chilling effect on freedom
of speech and assembly as well as to the way it will be applied on the ground
level. I can only say that I would prefer that method if there is an
understanding that changes do need to be made.
Senator Batters: Thank you very much.
Senator Dagenais: I have a brief question for both of our witnesses. I
see that you represent the Criminal Lawyers' Association. I gather that your
association does not include any Crown prosecutors?
Mr. Spratt: Here? No, I am not a Crown attorney.
The Chair: Thank you very much, gentlemen, for your input and
assistance. We appreciate it. Enjoy the remainder of the day.
For our next panel, we have witnesses appearing via video conference from
Vancouver. Representing London Drugs Limited, we have Tony Hunt, General
Manager, Loss Prevention; and from The Cadillac Fairview Corporation Limited,
Lincoln Merraro, Manager. You are together today, and we appreciate your being
with us, gentlemen. I apologize for the delay in getting to you. Do you both
have opening statements?
Tony Hunt, General Manager, Loss Prevention, London Drugs Limited: I
have a statement, senator.
The Chair: Please proceed.
Mr. Hunt: Thank you. My name is Tony Hunt. Thank you for the
opportunity to comment on Bill C-309. As a security professional representing
one of the many businesses impacted by the Vancouver hockey riot, I hope to
share the role that masks can play with disruptive large crowd events and the
impact on the safety of our staff and the public.
On the evening of June 15, 2011, our hallmark London Drugs, at the corner of
Granville and Georgia in Vancouver, was broken into and pillaged by over 300
criminals. Thirty staff watched in horror as thugs ravaged through the
burglar-resistant glass and the steel security gates, and they pounded their way
into the store. Our staff fled to safety, to our basement room barricade, while
thieves stole $450,000 worth of expensive merchandise and inflicted $224,000 in
Property can be replaced, but the emotional trauma to our staff is just not
an acceptable societal standard.
In the independent review of the 2011 Vancouver Stanley Cup playoff riot, Mr.
Furlong and Mr. Keefe discovered that on the night of game 7, before the first
goal was even scored, there had already been reports to police of a "small
cluster of masked men in the crowd." The review report also determined that on
the night of the riot some individuals came downtown prepared to make trouble.
We found in reviewing our video images approximately 30 per cent of the
suspects tried to use their shirts, sweaters, umbrellas, scarves, bandanas and
even a wrestling mask to hide their faces.
One can only wonder that, if there was an opportunity and a means to deter
those individuals from donning masks, at least some of the damage and risk to
life may have been avoided. The key from the victim's perspective is to prevent
the crime from occurring in the first place.
London Drugs seeks to provide a safe and secure environment for our customers
and staff under all circumstances. We regularly plan around and coexist
peacefully with large gatherings on city streets, parks or courtyards near our
stores. The overwhelming majority of these protest events are peaceful, cause
little disruption, and are attended by well-meaning individuals exercising their
rights. However, when preparing for large events, we view gatherings attended by
those in masks to be extremely high-risk events, requiring additional
preparation, anxiety and expense.
It is important to note that the issue of masks encouraging criminal
behaviour goes beyond protests. There is a very real threat to retail business
that security professionals refer to as multiple offender crimes. These are
sometimes confused with flash mobs, which are generally fun-loving and
The multiple offender crimes are events in which individuals attend a
location and under the cover of a prank or a spontaneous gathering, and with the
power of social media to organize them, and a mask for anonymity, the masked
group commits large-scale gab-and-run thefts or vandalism while putting staff and
customers in danger. These events are of growing concern in the United States
and the ability to freely obscure one's identity while appearing in a flash mob atmosphere simply increases the chance of escalation to criminal behaviour.
With the proliferation of mobile device cameras, there is a vested interest
for those who wish to act in a criminal and unsafe manner to remain anonymous by
wearing a mask. Providing our police with a tool to intercede at a more
preliminary stage of an event may prevent violence by removing that anonymity
currently enjoyed by those who create mayhem.
The lawful excuse provisions of the bill recognize and protect those who have
lawful reason to wear head coverings, or have any other lawful excuse for
obscuring their face. As a company, we are respectful of cultural diversity and
believe these provisions to be vital for the bill to be successful in protecting
our customers and staff while respecting those same individuals' rights and
For the safety of our staff, the public and for those who wish to exercise
their rights to protest in a lawful and peaceful manner, we encourage acceptance
of this bill.
The Chair: Thank you, Mr. Hunt.
Mr. Merraro, do you have any opening comments before we go to questions?
Lincoln Merraro, Manager, Security, The Cadillac Fairview Corporation
Limited: I just have a brief one, senator. We would also like to support
Bill C-309. As Mr. Hunt mentioned, we do deal with a lot of large-scale
demonstrations and being in a public space, we are, of course, interested to
participate when there is a lawful reason for people to gather.
The ability to demonstrate or to protest I think is very important for our
society. However, whenever we have seen, as Pacific Centre is concerned, the
ability for one person to conceal their identity, the effect it has on the
public and the people who are lawfully present at those events is to change the
mood greatly. I think it affects the mood, the spirit of protests, and it does
not do anything to prevent the persons from concealing their identity to engage
in unlawful activity.
The night of the riot we had 16 different reports to the Vancouver Police
about crime. Each one of those had to do with someone who had purposefully
concealed their identity before conducting the crime.
The Chair: Thank you both. We will begin the questions with Senator
Senator Fraser: I guess it is still "good morning" that I should say
to you in Vancouver, gentlemen. Thank you both very much for being with us. It
is very helpful to us.
Clearly, what happened in the Stanley Cup riot in Vancouver was absolutely
appalling. The numbers that you gave us, Mr. Hunt, about just one company's
losses are a stark reminder of just how bad it got.
However, a number of us are having trouble figuring out how this bill would
have done anything to prevent that appalling criminal conduct that you described
so eloquently. It is already an offence, punishable by up to 10 years, to wear a
mask with intent to commit an indictable offence, which rioting is. Under this
bill, it is an offence to wear a mask while committing the indictable offence of
participating in a riot. I do not see what has changed. Even the penalty is
still up to 10 years for disguising your identity.
I seem to take from you, Mr. Hunt, that you were looking for a greater
deterrent — for something that would give the police the ability to interfere
earlier in the process; and goodness knows one can sympathize with that desire.
However, I wonder why you think this bill does that.
Mr. Hunt: When looking at the police response or the public
authorities' response to a protest or assembly that becomes unlawful, a business
owner is interested in knowing that the police have the ability to intercede
with those who are potentially the ringleaders or instigators or those who are
bent on changing the type of protest or the mood of the protest utilizing
tactics referred to as the Black Bloc tactics.
When you get a group of people assembled together in a peaceful protest and
it starts to become close to or completely unlawful, the impact on members of
the public and business owners is greater if those individuals involved in the
protest are masked. On the ground — and I believe the committee probably will
hear from those in law enforcement — it appears that in the time it takes to
communicate, discuss and provide warnings for unlawful assembly to the
participants, there is a lot of opportunity for those in masks to incite the
group or to commit acts that are not necessarily the indictable offence that the
police would require to institute those provisions. A simple act of vandalism is
a good example.
I apologize for the lengthy answer, but I would point to one example at the
beginning of the Vancouver riot situation before it was clear that it was
actually a riot: The police were asking people to clear the streets. A masked
offender walked up to the front of our store and while our staff inside of the
glass window looked out onto the street, the masked offender vandalized and
spray-painted the outside of the store in plain sight. From a business
standpoint representing staff and customers, we would like to think that the
comments by the police in previous testimonies and publications indicate that
this would provide them with the tool to intercede with those who are masked and
most likely to cause trouble.
Senator Fraser: I guess there are differing interpretations of the
impact of this bill on the situation you described. However, you make your case.
Mr. Merraro: Essentially, I agree with Mr. Hunt. Many of the things we
saw that night we have seen at other large- scale events. A large group of
people gathered to peacefully protest or to demonstrate can be overtaken by
people who already have the intent. It is pre-riot, it is "pre-" any type of
existing opportunity for police to intervene or to use the powers available to
them. Those who are masked will use the 10 to 20 minutes of rallying time to
incite people to do more because they are covered and have a sense of
empowerment because they believe they cannot be identified.
Senator Fraser: Incitement to riot is an offence, but under this bill,
the police could not do anything until the riot was under way or at least the
unlawful assembly was under way. I wish I could be persuaded that this would
solve what is a very real problem many times. Thank you, gentlemen.
Senator Plett: I thank you, gentlemen, for being with us this morning
via video conference.
I want to talk a bit about the emotions in the community. Having lived
through this sad era in Vancouver's history, I would like to ask you this:
According to the numbers released by the Vancouver Police on March 13, 2013, 25
per cent of the people monitored following their convictions or charges in
relation to the Stanley Cup riot, and the number of convictions have been very
low, are now showing contempt for the courts by ignoring judges' orders.
Tell me a little bit about the feeling in Vancouver when they hear about the
statistics of the low percentage of people who have been convicted and about the
ones who have been convicted showing this type of contempt. What is the mood in
Vancouver as a result of what happened? Do you believe that this law would have
helped during the Vancouver riots?
Mr. Merraro: The mood, especially among large businesses, is that the
Vancouver Police have done everything they could do to bring the people before
the courts. The sentences received and the contempt that persons have shown for
that speaks more to the individuals than to the sentiment of the public in
Vancouver. I think the courts are doing all they can, and the police have done
all they can. When people show that contempt, it is because they still do not
feel responsible for their actions on that night. They are not convinced that
because they were part of this, they should be held solely responsible as a
person versus being responsible as a group; and much of that goes back to the
feeling of being anonymous in a group.
Mr. Hunt: I would agree that the actions of the individuals and their
potentially or alleged contemptuous behaviour following sentencing certainly
does not help with the perception of the public that the authorities have the
ability to adequately respond to this. However, I would agree that the effort of
the Vancouver Police and the courts have been profound here in working with us
I would say that there is a sense of hope that we will not encounter a
similar-type situation in the city of Vancouver. Vancouver is an amazing
cultural mosaic and, as an organization, as I mentioned in my remarks, we plan
for protests at public events and we appreciate that as part of the community,
people will gather together and celebrate. It is clear to everyone that there
are some small elements of the population that in those events, through
momentary lack of good judgment, have intent to cause mayhem and essentially
create a situation that erodes people's confidence and faith in society.
In downtown Vancouver, there is a sense of pride in how the community
responded afterwards to the event. However, there is still that pall hanging
over that it could happen again at any time. Businesses and staff prepare for
the worst whenever there is a gathering downtown for fear those with masks or
ill-intent may show up and hijack the event.
Senator Plett: Being from Winnipeg, I hope that you do not have the
Stanley Cup there too soon. However, if you have another opportunity, I know
that you will showcase your city well.
Senator Baker: I would like to thank the witnesses for their excellent
testimony. Mr. Hunt, you have examined the court cases and the judgments brought
down of 116 people who were arrested on that night. Amazing to most of us who
have looked at the judgments is the enormous nature of the damage that was done.
The integrated riot unit of the Vancouver Police claimed that there were 297
riot events, one of which was your store on Granville Street.
We have heard the description of your employees being inside, and the store
closed at about 7:40 p.m. Then the employees saw on the internal television this
mass of people, and then the break-in took place, and your television screens
recorded 300 looters that evening. That was on television. The tapes are there
showing 300 looters just in your one event of the 297 that took place, which
shows the enormity of the problem.
Some people have criticized or have been adversely critical of the fact that
only 116 arrests were made that night, although in your one store 300 looters
were televised. Do you have any suggestions or thoughts as to what can be done
to increase the numbers of persons who are arrested? They did not all have their
faces masked, very few of them did, but is there anything else that you would
recommend that could be done in law in case there is a repeat of these events in
the future? Your losses were about $1 million in that one store alone.
Mr. Hunt: Thank you, senator. It is still to this day a fairly
emotional event to think about myself. I was not on the premises at the time. I
was watching it remotely live. Of the staff at my store, one of my loss
prevention people described it as citizens of Vancouver acting as zombies
mindlessly attacking the store.
The impact of masks and obscured faces on the investigation is apparent to
everyone. Something interesting happened in reading the different reports and
reviewing the footage we had of the event. When the police started to talk about
it is time to clear the streets and started to announce or request people to
clear the area, it appeared that the group broke into several components. The
one component that I think is new is the citizenry who were equipped with their
social media devices and cameras and cell-phone cameras were looky-loos
essentially. It was not so much the 300 to 700 people gathered around London
Drugs that were up to no good that particular evening but rather was potentially
the 3,000 or 4,000 gathered around the store at a slightly farther distance
recording the event on camera.
One thing separate, potentially, from this initiative today is when the
police are asking for citizens to clear an area or the streets it appears
largely that well-meaning citizens attempting to record the event for posterity
and acting as essentially freelance photographers essentially ignored this and I
believe got in the way of emergency services' ability to respond.
What we found was you have 300-plus people, as you mentioned, some of them
masked, some of them intending to cause havoc from the beginning, and several
thousand people standing around not telling them it is a bad idea, for the most
part, and that gives you a classic group think scenario. To find some way to
ensure that the citizenry were able to comply with the instructions of law
enforcement would be an additional extremely helpful measure.
Senator Dagenais: I want to thank our witnesses for being here today.
Mr. Hunt, you are a business owner but you also represent organizations that
must ensure the protection of businesses.
If we consider the fact that the current provisions in the legislation are
more or less enough to protect your businesses, would you agree that Bill C-309
would assist the police to better protect your businesses?
Mr. Hunt: I believe the provisions of this bill would assist the
police in protecting our businesses.
Senator Dagenais: Thank you very much for your answer.
Senator Jaffer: Thank you, Mr. Merraro and Mr. Hunt, for appearing. I
myself come from your city, and my family lives very close to your store, Mr.
Hunt, and I have often shopped there, so I certainly saw the damage afterwards.
As a Vancouverite, certainly all of us got hurt. Our city's reputation was
damaged; we all individually were hurt when we saw what happened to our city.
The challenge with this bill is that section 351(2) of the Criminal Code
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.
What appears in this new bill already exists in the Criminal Code. You were
on the ground and are ongoing finding ways to give security to your staff, to
your merchandise, to people around. What would be interesting to hear from you
is what lessons have been learned and what should be in place for the next time
to prevent something like this from happening again?
Mr. Hunt: Thank you, senator. I think that steps to dissuade
individuals who are intent on disrupting peaceful events or influencing those
who potentially could be led astray to wearing masks and bringing tools to
create havoc would be a good idea to start with. However, ensuring that there is
a clear motivation for our citizenry to cooperate and support emergency services
in these types of events is important, understanding that as an individual I
know that protecting the rights of individuals to protest and express themselves
is vitally important, and I know my company believes that too. I believe there
are lots of things that we could look at and do, and many were mentioned in the
Keefe and Furlong report, and I believe they are being implemented.
I simply see this, for me, as another measure for the police to come into
contact with and intercede professionally with those who are wearing masks in
these types of events, ideally sooner if you ascribe to the opinions I have
heard from the various chiefs of police on the matter.
Mr. Merraro: Being kitty-corner to the London Drugs location, the
Pacific Centre experienced the same amount of people going by with masks, and we
also experience this during different events. Vancouver hosts many large-scale
events. Things like the Celebration of Lights, for instance, bring a lot of
people downtown, and when there is an event like that, there is an ability to
have a certain small pocket of people who, without it being called a riot, could
be masking up, as the term would be now, beforehand to try to be anonymous
before they go out to participate in the riot. This bill would give the police
one added tool to intercede sooner than the current provision in the Criminal
Code does. When you look at The Cadillac Fairview perspective of looking at
deterrence, anything that can be done to deter crime at an earlier stage is
The Chair: As a follow-up to what Senator Baker was asking, I was
looking at the website for the Integrated Riot Investigation Team — this is in
Vancouver of course — and there were 1,052 charges recommended, as I read this,
with 614 approved by the Crown. Then you read news stories on this, and 194 were
actually charged. I am not sure why there is such a significant difference
between what their website says and what actually occurred according to news
stories. Two years have passed, and they are still dealing with some of these
matters before the courts.
I was trying to compare that with what happened in Great Britain with the
riots in 2011, which occurred between August 6 and 10. By August 15, 3,100
people had been arrested and 1,000 charged. They were in front of courts within
something like three or four weeks.
I just wonder what other elements exist, other than perhaps what this
legislation deals with. You have indicated your comfort with the police, the
courts and the justice system, but I think there is something else at fault here
when we cannot deal with these kinds of situations in a more effective and
timely manner. Do you have any reaction to that?
Mr. Hunt: Clearly, it is a very difficult job in dealing with this
massive influx of cases. I think everyone would like it to take less time in
dealing with them, and those improvements would certainly be welcome. We do have
many individuals accused of crimes at our store who are still making their way
through multiple court appearances, either pre-plea or post-plea, and awaiting
I do not know what the answer is. It is not my area of expertise, but I would
certainly echo your sentiment that I think everyone has a vested interest in
justice moving swiftly and effectively.
Mr. Merraro: Thank you for that. I would agree with you in terms of
the length of time in between. Just for your information — this is information I
provided earlier — we did give the Vancouver police over 100 hours of video from
this event alone, utilizing everything from an analogue to an IP camera, and
they would have to sift through that video to get enough information that they
could actually use. I can truly understand the overwhelming nature of what they
had to go through in trying to identify some of these people and have them face
Like Mr. Hunt, I do not have an answer. I do agree with you, and if there was
a way, I do not think this was just a Vancouver hockey riot issue when it came
to the length of time. I think there is a lengthy delay with any riot, mischief,
theft under, any type of charge that goes before the courts.
The Chair: I agree with you; it is not just a Vancouver challenge.
Senator Joyal: Thank you, gentlemen. Following those events, did you
review your security measures and improve them in your stores, such as
installing iron curtains so that you could bring them down if something were
predicted to happen downtown that could transform itself into a riot? Did you
change some of your procedures in relation to security in the management of your
stores or premises?
Mr. Hunt: Thank you, senator. We did a security review. We did a root
cause analysis of structural failures in the store, and yes, we have added
security measures and security features to the front of the store, as the design of
the store would allow.
I commented when I spoke to Mr. Furlong and Mr. Keefe that there is in
security a concept of a delay time that you have with any security measure.
Really what it comes down to is businesses must provide enough delay time for a
perpetrator to enter the store, to hopefully dissuade them from completing the
crime or allow the authorities the opportunity to attend.
The question I have, of which I am not sure there is an answer and it is
perhaps simply rhetorical, is how much time should a business have to provide to
allow the authorities to be able to make their way through that crowd of 4,000
people to come and assist you? It is a very difficult question because we are
dealing with new concepts, like I said with the looky-loos.
The answer is yes, we have increased our security, we believe it is adequate,
and we have made significant investments in that area to protect ourselves and
Mr. Merraro: One of the most difficult things for the Pacific Centre as
a whole is the difference between public perception of having an open and
inviting environment and trying to bring as many people into our shopping centre
as possible while not appearing to be a fortress or prepared for the worst.
While we did not have any structural failures to our property on the night of
the riot, the thing we have changed has been around personnel, in how we deploy
our security personnel and where they are located so they can either intervene
or observe and can provide information that we can then relay to the Vancouver
police as far as crowd movement, crowd mood and easier routes to come and go
from the Pacific Centre, as we do extend over three city blocks. Nothing on the
structural side was hurt, but definitely we have made changes on the personnel
Senator Boisvenu: Thank you very much for your comments. My questions
are somewhat different. I went on Mr. Hunt's website and I saw that your store
sells electronics, which I gather can be quite appealing to thieves given how
easily that type of equipment can be sold. Did your insurance cover all the
losses you incurred during the riot?
Mr. Hunt: This is not settled as of yet. However, it appears that we
may be one of the lucky organizations in that we may be able to successfully
conclude a claim. I do not have a definitive answer for you.
Senator Boisvenu: Today, then, you do not know how much those events
will cost you out of pocket?
Mr. Hunt: No, sir, not for certain.
Senator Boisvenu: Did any of your employees require counselling or
therapy to deal with the traumatic event they went through?
Mr. Hunt: That was a very important issue to us at the time and
continues to be. We have provided through an employee assistance program the
assistance of counsellors and psychologists to provide support to our staff.
Thankfully, because of the excellent work of our human resources professionals,
of which I am very proud, and the resilience of our staff, we have not lost any
days that I am aware of due to the riot situation. However, it was certainly a
traumatic event for our staff at the store.
Senator Boisvenu: Do you receive any financial assistance to cover
Mr. Hunt: Yes, it is part of our employee assistance program. It is
something that as an employer we provide for our staff.
Senator Boisvenu: I would like to discuss British Columbia's crime
victim assistance program. Did you receive any financial support from them?
Mr. Hunt: The program is internal to our company and a benefit that we
provide to our staff.
Senator Boisvenu: I would like to come back to the cost issue, if I
may. Correct me if I am wrong, but, as I understand it, you, as a business, were
on the hook for the full cost of all the damage caused to your property and the
improved security equipment you had installed. You did not receive any financial
assistance through a support program or from the City of Vancouver; your
business bore the entire cost, is that correct?
Mr. Hunt: At this point, that is correct. It appears, as I said, the
insurance company and the insurance situation is yet to be resolved, as far as I
am aware. However, all of the improvements, the follow-up and the investigation
at this point are costs that we have borne ourselves.
When I refer to investigation, I mean our own people providing the video,
collating the video, investigating the root cause, taking statements,
interviewing and working with our staff during the investigation.
Senator Boisvenu: No doubt that is why you feel it is so important to
strengthen the Criminal Code: to prevent this kind of thing from happening or,
at the very least, to make it easier to prosecute the perpetrators of these
Mr. Hunt: The financial cost certainly was significant, but as an
organization the devastating impact was upon staff who were terrorized by
watching people beat down the front of their workplace and the horrible
situation that parents at home who had young people working at our store would
have gone through. They did not know for sure where their young person, who
happened to go to work at their retail establishment that day, would be during
this event while it was Tweeted in real time. The horrible human impact from
this type of event is the motivation that causes us, as an organization, and me
personally to wish to see some type of change and hopefully some way to avoid
these types of things in the future.
The Chair: Has there been any public reference to any discussion with
respect to compensation from the municipality? We are having officials from
Vancouver Police appear next week, but with respect to lack of preparedness to
meet these challenges — and I know that was one of the accusations made via the
media at that time — I wonder if there is any discussion by any party that is
pursuing that avenue for compensation for damages incurred that you are aware
Mr. Hunt: That I am aware of? Perhaps my colleague might have
knowledge. As I understand, there may be a couple of businesses that have some
actions in place at this point. I am not specifically aware of them, senator.
Mr. Merraro: I would agree. There are a couple of smaller businesses
that I believe, through the media, are doing that. When we are talking about
things like compensation and the night of the event, there are two or three
stores or organizations that are going after the municipality. That is one
thing, but you also only have two representatives here for Pacific Centre. The
previous senator was asking about the damage and the financial impact to London
Drugs, and that will be multiplied as you ripple down Granville Street. The
stores that front along Pacific Centre, Sears, TD Bank, Artitzia, H & M, Blenz
Coffee, Holt Renfrew — the list goes on down the street — every one of those
organizations will also have to go through their insurance company to see if
it is something they can do. Every one of those companies will have to go
through their employee assistance program to provide the same type of assistance
to employees, because these events and the types of individuals did a number on
downtown Vancouver that night.
Senator Fraser: This is to Mr. Hunt. I would like you to explain a
little more, so that I will have a better grasp of it, your reference earlier to
delay and how you would like more clarity about the delay that must occur before
the authorities can come in. Do you recall that portion of your testimony? I do
not understand the system to which you refer so I need help in understanding it.
For example, we have recently gone through a couple of bills that make it easier
to do citizens' arrests. I was not sure what you were talking about. Can you
just tell me more so that I will have a better grasp?
Mr. Hunt: I will do my best to explain my understanding of the situation
as a public stakeholder in these types of events.
When the police attend a public demonstration protest and the event is
initially deemed to be unlawful, as a matter of process the police provide those
individuals an opportunity to disperse. It is simply through my study of this
event and my association in working with law enforcement that I know this and
you might be well served in speaking with a member of the law enforcement
community, but my understanding is that during that time frame the individuals
involved in that event are given an opportunity to disperse. Leading up right to
that time, warning people that wearing masks and obscuring their identity
will be a significant crime provides the police an opportunity to speak to the
individuals and provide notice of this. Hopefully that causes the individuals
who are using that anonymity to change the tone of the event and provide an
immediate change as to how things are being handled.
It is my not area of expertise to determine how law enforcement tactics are
employed in a protest event. However, as a stakeholder watching nearby and
listening to the chiefs of police and police contacts in response to the riots,
it seemed clear they needed more tools to intercede at that early level,
particularly with the potential bad actors wearing masks.
Senator Fraser: I misunderstood. I thought you were talking about some
required delay between the time that people with nefarious intent entered your
premises and the time when action could take place, but that was not what you
were talking about?
Mr. Hunt: Correct.
The Chair: Thank you for your input today. It is very helpful and we
much appreciate your appearance.
Thank you. We are going to adjourn in a moment. I remind members that next
week we will continue our consideration of Bill C-309. On Wednesday we will have
law enforcement representatives including the Vancouver police, as well as
representatives of civil liberties associations appearing before us.