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 time.

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 postponed?

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 comments.

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 testimony.

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 necessarily criminalized.

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 red herring.

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 of that?

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 statement?

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 Service of 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 reasons.

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 alone prosecution.

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 assembly.

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 excuse."

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. Spratt's submissions.

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 this legislation.

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 you.

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 loitering.

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 mask on."

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 identity.

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 this.

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 criminal.

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 identification.

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 otherwise.

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 two years.

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 code.

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 of intent.

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 no difference.

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 person.

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 a beaver.

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 the legislation.

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 physical damage.

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 spontaneous pranks.

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 observances.

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 Fraser.

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 as victims.

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 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.

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 preferable.

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 sentencing.

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 charges.

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 our staff.

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 side.


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 psychotherapy costs?


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 crimes.


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 of?

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.

(The committee adjourned.)

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