Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 34 - Evidence for April 24, 2013
OTTAWA, Wednesday, April 24, 2013
The Standing Senate Committee on Legal and Constitutional Affairs met this
day at 4:18 p.m. to study Bill C-309, An Act to amend the Criminal Code
(concealment of identity).
Senator Joan Fraser (Deputy Chair) in the chair.
The Deputy Chair: Good afternoon, senators and members of the public.
Today, the Standing Senate Committee on Legal and Constitutional Affairs is
continuing its study of Bill C-309, An Act to amend the Criminal Code
(concealment of identity).
We are very fortunate to have with us, for our first panel of witnesses this
afternoon, by videoconference, representing the Canadian Civil Liberties
Association, Professor James Stribopoulos, who is an associate professor at
Osgoode Hall Law School. With us in person is Mr. Paul Champ, who is a
representative of the B.C. Civil Liberties Association.
Welcome to both of you. Thank you for taking the time to help us with our
deliberations. Mr. Stribopoulos, do you have a statement?
James Stribopoulos, Representative, Associate Professor, Osgoode Hall Law
School, Canadian Civil Liberties Association: Thank you for this opportunity
to speak to the committee on behalf of the Canadian Civil Liberties Association,
and thank you as well for the accommodation of allowing me to appear by way of
videoconference. It is very much appreciated.
I want to begin by readily acknowledging that the mischief that this bill
aims to redress is a serious one. The idea that individuals could involve
themselves in violent, riotous behaviour, engaging in wanton acts of property
destruction and violence, and seek to conceal their identity and thereby
interfere with the ability of the authorities to apprehend them and prosecute
them by disguising themselves is extraordinarily troubling and something that we
all should take very seriously, and the Canadian criminal law should take
With that said, I want point out that, in the view of the Canadian Civil
Liberties Association, the Canadian criminal law already does takes it very
seriously. As many of you know, this is already an offence. I am of course
making reference to section 351(2) of the Criminal Code, which makes it clear
that anyone who, ``with the intent to commit an indictable offence'' — and
participating in a riot is an indictable offence — ``has his face masked or
coloured or is otherwise disguised,'' is guilty of another indictable offence.
It is already a free-standing indictable offence punishable by a period of up to
10 years imprisonment.
Therefore, in our view, the proposed amendment to the code is entirely
unnecessary. As I testified before the House of Commons Standing Committee on
Justice and Human Rights when the bill was before them last May — and in that
context I was appearing as an individual in my role as a law professor, not for
the Canadian Civil Liberties Association — I pointed out at that time that this
is really a bill that is a solution in search of a problem, because this is not
a problem, in my respectful submission to you, the members of the committee.
I know Mr. Richards, the sponsor of this bill, has testified that section
351(2), the one I just read to you that is already in the Criminal Code, was
meant to deal with individuals who wear masks for the purpose of committing
armed robberies, and he claimed in his testimony that it is ill-suited for
dealing with masked rioters. With all due respect to Mr. Richards, that simply
is not a correct construction of section 351(2). There is nothing in the
language found in 351(2) to limit its use to those who mask their faces to
commit robberies. There is nothing to foreclose its use in prosecuting those who
mask themselves during riots. If the police had been reading 351(2) in that way,
as Mr. Richards suggests, that is not a problem with the Criminal Code, frankly,
but a problem in terms of training. They need to have 351(2) explained properly,
because it covers this problem.
Mr. Richards also testified, and I am trying not to misquote him here, ``That
the police have essentially asked for this power, so why not give them another
tool to add to their tool box.'' Putting aside the constitutional concerns that
this bill raises, and I will speak to those in a moment, having two needlessly
overlapping provisions in the Criminal Code does not help redress the problem of
rioters donning masks to conceal their identities. At the same time, it creates
its own set of problems. For the police in the field, the question will almost
immediately arise, which of the offences to charge? If experience is any
indication, they will charge both, and that kind of confusion about which to
charge and charging both is problematic for the entire justice system — police,
prosecution and courts. Overcharging is directly linked to delay in our already
overburdened criminal justice system, and this will not help with that at all.
It will make it worse.
The proposed amendment also lends itself to being misconstrued and,
therefore, in our view, misapplied. I heard these provisions described by police
as a basis by which they could carry out arrests the moment protesters began to
don masks. Of course, read properly, that is not what the proposed amendments
actually appear to authorise. Each is predicated on the individual involved, in
the one case, 65(2), ``taking part in a riot,'' and in the case of 66(2),
``being a member of an unlawful assembly.'' Those are preconditions to
criminality. You would have to be doing those things and disguise your identity,
and then you would be guilty of an offence, but it is troubling that these
proposed amendments are being read as a basis for police to preventively arrest
protesters who are masked or disguised. That is not the way these provisions
should be read but, as they are drafted, with the offence in each subsection
being linked to the predicate event of participating in a riot or being a member
of an unlawful assembly, it is left for the reader to make the requisite
connection between the two subsections, the critical connection in terms of the
authority provided in the offence created by the subsections that are being
proposed. Based on the comments I have heard, it is clear that police officers
who are not lawyers are reading these provisions incorrectly and more
expansively than they are written. In my view, that is troubling and is a
product, in part, of how they are drafted.
In terms of drafting, I know that members of this committee have expressed
concerns about the ``lawful excuse'' language that is programmed into both
provisions. These concerns are well founded, in our view. You undoubtedly
appreciate that there are many entirely legitimate reasons for someone involved
in a protest to cover their face. As a form of political satire, a protester
might want to wear a mask or a costume that covers their face. Someone involved
in a protest in Canada, for example, that has as its focus events in their
homeland might want to conceal their identity because of legitimate concerns
about the potential for reprisals abroad for family and friends who are still in
that far- off place, whose government is the subject of a protest in Canada, for
example, in front of an embassy or consulate. Others might wear face coverings
for religious reasons. Each of these examples is entirely legitimate, and none
of them raise any public safety concerns. Each example is also constitutionally
protected by the Canadian Charter of Rights and Freedoms. In the first two
examples, I am, of course, making reference to freedom of expression, and with
the last I am speaking of freedom of religion.
I know that Mr. Richards testified about some of these examples and
maintained that each individual involved would have a ``lawful excuse'' defence.
When pressed by members of the committee about how that would work and who would
actually define what constitutes a ``lawful excuse,'' he candidly acknowledged
that it would have to be sorted out on a case-by-case basis by the courts as
individuals are prosecuted and their cases are resolved by the courts.
Unfortunately, that is a far cry from the certainty we should strive for when
fundamental democratic rights are at stake. The potential chilling effect on
lawful protestors who might simply choose to leave their costumes at home or
refrain from protesting entirely because they fear reprisals abroad but also
fear arrest here at home if they cover their face to protect their families in
Syria, for example, is very troubling. This committee must not only be concerned
about public safety; it must temper that concern with the need to strike the
right balance with our most cherished civil liberties.
Also, as the experience with the G20 summit in Toronto demonstrated, the
cases of those who are unjustifiably arrested will not ultimately come before
the courts. For example, the police arrested 1,105 people during the G20 summit
in Toronto. Yet, only 321 of those arrested ended up in court facing charges
and, of those who did, 204 ultimately had the charges against them stayed,
withdrawn or dismissed. In other words, in most cases, what qualifies as a
``lawful excuse'' will be decided by the police in the field. Given the
constitutional rights at stake in this context, and the potential chilling
effect on democratically cherished rights like freedom of expression and freedom
of religion, these are not questions that should be left to the exercise of
For all of these reasons, the Canadian Civil Liberties Association is very
much opposed to these unnecessary amendments to the Criminal Code.
Thank you for this opportunity to present an opening statement. I would be
happy to answer any questions you might have as the proceedings continue.
The Deputy Chair: Thank you. We will now hear from Mr. Champ.
Paul Champ, Representative, B.C. Civil Liberties Association: Thank
you very much, and good afternoon senators. I want to thank you on behalf of the
B.C. Civil Liberties Association and their president, Lindsay Lister, and our
board members and the thousands of members of the B.C. Civil Liberties
Association for the opportunity to address this bill.
I am Paul Champ, and I am a member of the board of directors of the B.C.
Civil Liberties Association. We would like to raise some of the concerns that
our organization has about these proposed amendments to sections 65 and 66 of
the Canadian Criminal Code, that is, increasing sentences for those who wear
masks or coverings at riots or unlawful assemblies. I will make three points,
first concerning freedom of expression, second concerning privacy and third
concerning unintended consequences of what is really a redundant bill. I will
try to restrict my comments or submissions to perhaps points that you have not
heard as much about and try to emphasize some of those as much as possible.
I will start with the big one, freedom of expression. The first thing I would
like to say about freedom of expression is that protests and demonstrations are
a very good thing. They should not be viewed as a nuisance. They should not be
viewed as an inconvenience. They should be viewed as democratic expression.
Whenever people gather together and organize to say something together, that is
always a good thing, whether they are protesting for something or protesting
against something. These are all good things when citizens gather together for
that purpose. It is really something that should be encouraged and promoted.
The exchange, expression and communication of ideas in a peaceful assembly
reinforce the vitality and vibrancy of a democracy. These go back to our
democratic foundations, and they are values that have been repeatedly reinforced
and expressed by the Supreme Court of Canada. As the Supreme Court stated in the
Irwin Toy case:
. . . in a free, pluralistic and democratic society we prize a diversity of
ideas and opinions for their inherent value both to the community and to the
If that is the value that is of concern, the big question is: What is the
problem? Our view is that Bill C-309 inhibits free expression and participation
in lawful assemblies. Simply put, it creates a chilling effect for those who may
wish to participate in protests or demonstrations and wear masks for peaceful,
lawful and expressive purposes.
Contrary to some of the views you may hear, there are legitimate reasons to
wear masks. You have heard some of the submissions from Professor Stribopoulos
with the CCLA. I will reiterate some of those quickly, but it is really about
two things. First, the mask itself can convey a meaning. It could be political
satire to wear a mask. Sometimes protesters protesting against Guantanamo Bay
wear the sensory deprivation goggles, mask and ear muffs, or the Guy Fawkes
masks. There are different reasons why people will wear mask for their
The second big reason is that masks can sometimes be an aid to unpopular
speech. Unpopular speech, we should understand, is as important as popular
speech, sometimes actually more important. It is hard to go out and protest,
support or express your views for unpopular ideas. There are sometimes
situations where people do not want their family to know that they are
protesting, or they may not want their employers to know they are protesting in
support of a certain issue.
Sometimes, as Professor Stribopoulos said, you do not want the country you
are from to know. People protesting in front of the Syrian embassy, for example,
who perhaps have family members back home might not want their face shown, where
no doubt video cameras from the embassy are picking that up. It is the same kind
of situation with the Iranian embassy.
Alternatively, imagine the son or daughter of a cabinet minister who wanted
to attend the legalization of marijuana rally on Parliament Hill over the
weekend. They might not be so happy if there is a video camera catching them for
the evening news; mom or dad might not be so pleased with that.
Another example might be a young Bay Street lawyer who was perhaps a bit
disenchanted with his or her job and who might have wanted to go into the
streets and protest during the G20 demonstrations a couple of years ago in
There are many good reasons that people might want to obscure their face or
wear a mask while lawfully participating in a peaceful demonstration.
I would like to emphasize again that assembly is not something that
democratic societies should just tolerate. Sometimes I think that is the view
that police officers have — they view it as a pain, an inconvenience and that
they have to put up with it. No; the approach or the attitude that we should
take with assemblies, demonstrations and protests is that it is a great thing.
Here are citizens who have come together for whatever idea, and who have
organized together. We should encourage and celebrate that kind of activity.
My next point is a brief one, and it has to do with privacy. The B.C. Civil
Liberties Association has worked on the issue of facial recognition software and
police or intelligence watch lists. What does it take to become an intelligence
target today, and what are the consequences that flow from that? I can guarantee
that CSIS and the RCMP do conduct surveillance of certain protests. If you do
not believe me, you can call Mr. Coulombe, the new interim director of CSIS. For
university students attending protests today about something very unpopular, it
might be the case that a little picture will end up on an intelligence file that
will haunt them for the rest of their lives, just because they attended a
certain kind of protest in their youth.
You think that might sound hypothetical, but I recently worked on a case
about a young pastor who made a speech in the 1930s about what was apparently a
very unpopular and subversive idea about unemployment insurance. That was Tommy
Douglas, and the RCMP thought that was practically grounds for revolution. They
had a spy who watched him closely; they recorded what he said and put it down;
and it was in an intelligence file that followed him throughout his political
career until he was dead. We now have facial recognition software, and we know
from our experience that is being used at these protests. That is a serious
The final point I will make is about the unintended consequences of Bill
C-309, as you all know already — and this is a very important point — Bill C-309
is completely redundant. The power to increase a sentence for someone committing
an offence already exists in the Criminal Code. Why are we doing it; why would
we attach the unlawful assembly and riot provisions to sections 65 and 66?
I think it is because there is a message that someone is trying to send out,
but we do not think those are positive messages. The first message is to those
who attend protests. Our concern is that people will be more fearful; it will
signal to them that there is this connection somehow that there is some kind of
turpitude or something wrong with wearing a mask at a protest or demonstration.
It is bad if that in some way inhibits the expression they might have been
planning on doing, whether wearing a political mask or something. Also, it might
be someone who does not want to attend at all.
The second group we are concerned about is the police, and Professor
Stribopoulos spoke about this as well. We are concerned about the actions of
certain overzealous police officers at protests. The 2010 G20 protests in
Toronto provide another abject lesson in Canadian history — if another was
needed — that sometimes police officers act excessively and inappropriately
towards protesters. There are all kinds of reports that have come out about that
— criminal trial, civil claims. The Canadian Civil Liberties Association
prepared a good report about that. We know about that case, but examples exist
throughout Canadian history about the actions of some police officers at
protests. These things can happen very quickly; it is sometimes a bit of an
Our concern is that some police officers might see this as a tool or a signal
that they should be grabbing people with masks. Perhaps they see it as a
preventive situation, but we are concerned that it would lead to an escalation
of hostilities at a demonstration. It might turn a peaceful demonstration into
Additionally, we could see that peaceful protesters who are wearing a mask
may be targeted by police officers. Again, we saw it at the G20 meeting, but
there are other examples where the police will sometimes go in to try to start
breaking up a lawful assembly that is not necessarily unlawful, and they start
swinging sticks. At times, it can be the people who are wearing masks who are
targeted, who are otherwise acting completely peacefully and lawfully.
You have heard a lot about the Stanley Cup riots in 2011. I think that is
what precipitated this bill. However, I would also like to tell you briefly
about the 2010 Olympics in Vancouver and the experience of our organization.
The B.C. Civil Liberties Association put together a group of what they call
``legal observers'' to go to protests. There were many protests about the
Olympics; there was a large number of them, in the thousands of people, who were
protesting against a variety of things. The purpose of the BCCLA legal observer
program was to have them at the protests, essentially keeping track of what the
police were doing. Some people called them ``police watchers.'' Sometimes they
would engage in case there was any escalation.
We are happy to say there were no arrests at those protests; those protests
were always peaceful. We never saw those protests get out of control in any way.
We attribute some of that to the legal observer program.
I would like to close with the idea that we are not trying to criticize the
police; they have an extremely difficult job. The 2011 protests in Vancouver
were abominable. Incidentally, that is also not the activity we are talking
about. What happened with the Vancouver riots was basically a crowd of people
who were all drunk after watching a hockey game, taking to the streets. That is
not the activity we are talking about in any event; we are talking about
organized, political demonstrations or protests.
To conclude, I would like to emphasize to the committee that Bill C-309 does
infringe or inhibit one of our most fundamental freedoms: the freedom of
assembly. The bill is disproportionate and unnecessary to address the concerns
that have been raised. Someone committing a crime can and should be
prosecuted, absolutely. This bill will not change that at all. What it will do
is cause a chilling effect on free speech and some of the other problems I have
raised with you today.
Thank you very much for your time.
The Deputy Chair: Thank you very much, Mr. Champ.
I think every single senator wishes to ask a question. We have 35 minutes to
get everyone in, so both the questioners and the respondents are asked to be as
concise as possible.
Senator Plett: I am assuming you will only allow us one question in
the first round.
The Deputy Chair: Two if they are very quick.
Senator Plett: I will try to get my two in quickly.
Thank you for being here, gentlemen. You have given us many reasons why
people should be able to wear masks at lawful assemblies and I do not think any
one of us argues that. This is about unlawful assemblies, not lawful assemblies.
Mr. Stribopoulos, in an interview in the National Post last June you
gave your perspective on the many problems caused by excessive delays in
bringing cases to trial. To paraphrase your comments, not only do such delays
impact on the accused's procedural rights but these delays are also unfair to
witnesses, whose memories fade with time, and to victims, who must wait so long
to see justice meted out. Ultimately, you said:
My biggest concern is that dangerous people not slip through the cracks.
I could not agree more. Even as we are here today, people are awaiting their
trial as part of Vancouver's Stanley Cup riots, which were planned riots, they
were not just drunk people going out and having a good time. Delays in getting
many of them to trial have been directly attributed to the concealment of their
identities. Other than section 351 and/or lawful assemblies, I would like you to
tell me why this law should not be there when prosecutors and police are telling
us it is necessary.
Mr. Stribopoulos: I am happy to answer that question, senator. I do
have the concerns that are attributed to me in the National Post article.
I do not think these proposed amendments, as I said, are going to help with
those problems. I think they will worsen it; they will lead to confusion,
over-charging and multiple charges where one would do. We already have this
The problem in Vancouver and the delays that have been occasioned in those
cases is not the result of not having the equivalent of the amendments that are
being proposed in the code, the problem is no matter what you put in the code
there will be people who get drunk and who go on rampages and who cover their
faces in the process of that, without any concern for public safety or order. No
law will change that.
The challenge in prosecuting those individuals is that they covered their
faces. This amendment will not change the fact that that behaviour will take
place. It is a bit naive, with all due respect, to think if we pass this law
people who are bent on that kind of behaviour will suddenly take their masks
off. They will not. They will keep the masks on and will now be charged with two
offences and it will become problematic in terms of the efficient movement of
their case through the courts as people debate which charge should be pursued.
Then the courts have to decide. They cannot be convicted of both because they
are essentially the same, one will have to be stayed and which should be stayed?
Why complicate things? We have this offence. Anyone who was concealing their
identity in the Vancouver riots was guilty of the offence in section 351(2) —
breaking windows and the like — so what does this change? How will this help? I
have not heard an answer to that question.
Senator Plett: Again, I did not want the answer to section 321.
Further, Mr. Stribopoulos, in your testimony to a committee in the other
place on the same matter, you stated that there is no deficiency in the law that
Bill C-309 needs to fix. However, police members and organizations from across
the country, people who have actually dealt with public disturbances and who
actually arrest and lay charges on individuals, have been quite clear that they
need this tool to fill the gap in the Criminal Code. The City of Montreal went
so far as to pass a specific law in their attempt to find a solution to the
problem of masked rioters.
Given that those who would use the legislation have demonstrated their need.
Indeed, we may have overzealous police officers now and again but we have laws
to deal with overzealous police officers. I believe firmly in the police forces
we have and that they try to do a good job. Why would you insist otherwise when
they say this is a good law?
Mr. Stribopoulos: I am really troubled by this and I said this in my
initial statement. The fact of the matter is I know they do say that, I have
heard them say that, too, and it troubles me because if they read section 351(2)
they would see that they have the power that they require to deal with this
problem. Could someone to explain to me a scenario that they confront that would
be caught by these amendments that was not caught by section 351(2)? That makes
me think that the problem is really in terms of their understanding of the law,
which is the police training problem. That does not mean we should change the
law, we should improve police training so they know what tools they have and how
to use them. That is a different issue and will not be redressed by these
I have the utmost respect for the police, I recognize the difficult job they
do, but the police are not trained legal professionals. They are police
officers. They take their lead and instruction from the lawyers in their
respective forces who are charged with the responsibility of telling them and
training them as to what the law is. We should not take their view of the law's
deficiency. We should take the view of the people who are experts in the law. If
you ask anyone who is an expert in criminal law and procedure, they will look at
these provisions and tell you these amendments, frankly, are unnecessary. There
is a problem here. We should train our police officers better.
The Deputy Chair: Mr. Stribopoulos, I hate cutting people off, but we
really are pressed for time. After you we have another video conference, so you
can see that for once we really are forced to abide by the timetable.
Senator Baker: In your presentation, professor, you mentioned
overcharging, multiple charging and so on. Would you not agree that this is
fairly common in law? If you look at your impaired driving sections 253(a) and
253(b), in the end you can only be found guilty of one of the two and the other
is ``Kienappled'' out. There may be multiple charges laid, but in the end the
judge would determine if it is one delict and then the others would be
``Kienappled'' out. That is the law we have before us.
Mr. Champ, I must say, you are an extremely busy litigator. You have over 170
reported cases in the last 10 years. There should be a book written about you in
which you are called ``the litigator'' or maybe ``the champ.'' I read about two
cases a month with you litigating. It is a wonderful activity. You are at the
Supreme Court of Canada and Amnesty International.
If I read you correctly, you are saying this will be a deterrent against
lawful assemblies; this will be a deterrent against peaceful assemblies. Am I
reading you correctly?
I will leave the professor to answer the question about ``Kienappleing'' out.
Mr. Champ: Absolutely, it is only about lawful assemblies; anyone who
is engaging in a crime, in a riot or in an assembly in any way absolutely should
be prosecuted. This is about creating a chilling effect on those who might
otherwise be acting peacefully and lawfully and who may otherwise change their
behaviour because of their fear of this bill.
Mr. Stribopoulos: I can tell Senator Baker was a criminal lawyer. They
would be ``Kienappled'' in the end, Senator Baker, that is true, but that would
require argument as to which one should be. In the other scenarios that are
common, which are impaired driving and over 80, or theft and possession of
stolen property, which are the two most common in criminal cases, there is
usually a purpose served by the multiple charges because both offences could be
committed differently. You could be impaired through drugs and not over 80, so
you need both charges because before the dust settles we might not be sure which
is true but we will figure it out in the case. You might be guilty of both
because it was alcohol and the impaired driving will be stayed. With theft and
possession, you are found with the items and you are definitely in possession
but you might have been the thief, too. It might turn out we have a reasonable
doubt that we have a thief, so we want to keep both charges in place because you
are definitely in possession. You might turn out to be the thief, but we will
stay the theft.
There is no scenario here where we need both sections in play. You are guilty
under both. I cannot envision a scenario — and that is my question to you and
those who are proponents of this bill, to give me a hypothetical that comes out
of the amendments that are not captured by section 351(2). The proponents of the
bill, given the constitutional interests at stake, in my submission, have that
burden. Give me a concrete hypothetical. If you put it forward and I hear it and
it is reasonable, I will agree with you, but I have not heard it yet.
Senator Rivest: With respect to municipal by-laws, if I have
understood correctly, the provisions in the Criminal Code would be sufficient,
and this bill would be unnecessary. What about municipal by-laws that ban mask
wearing? Are they simply unnecessary?
Second, with respect to limiting freedom of expression or the right to
protest, could the by-laws be unconstitutional?
Mr. Champ: In my view, absolutely, yes. I think that those kinds of
bylaws are unconstitutional. Perhaps in an exceptional situation for a short
period of time — for example, in the Montreal situation where there were
demonstrations day after day — perhaps there might have been a short-term
justification, or at least that might be the argument the city would make.
However, I think that a bylaw like that is absolutely unconstitutional. I think
there are some Charter challenges going, and in my legal opinion, for what it is
worth, they will succeed.
Mr. Stribopoulos: I completely agree with Mr. Champ.
Senator McIntyre: Thank you both for your presentations. As you have
both pointed out, Bill C-309 proposes to add two new offences to the code:
proposed section 65, punishment of rioter; and proposed section 66, punishment
of unlawful assembly. Both offences refer to the words ``without lawful
In a memo addressed to this committee, the Canadian Bar Association seems to
suggest that the proposal ``appears to shift the onus to an accused to establish
lawful excuse for concealing identity'' and that the proposed amendments could
raise a constitutional challenge.
It seems to me that the onus at all times remains on the Crown as opposed to
it shifting to the accused. What are your views on that?
Mr. Champ: I will turn to the professor first.
Mr. Stribopoulos: There are existing provisions in the code that make
reference to a defence of ``lawful excuse.'' One of the common ones is failing
to provide a breath sample without a lawful excuse. The reality is, in my view,
those provisions are susceptible to challenge as violating the presumption of
innocence and reversing the burden by placing the onus on an accused to advance
a lawful excuse, but I will be perfectly frank, as far as I am aware, they have
been upheld by the courts.
In context, the idea is that the Crown bears the burden from start to finish,
and if it is apparent in the circumstances — for example, a niqab, it would be
pretty obvious that a lawful excuse would be available, and the Crown would fall
short in terms of its proof. They are susceptible to that sort of argument. I am
sure it would be constitutionally challenged as violating the presumption of
Mr. Champ: I agree with the professor. He is more experienced, I would
say. I do not think it violates the reverse onus provision.
Senator Joyal: What you said to the reverse onus in that case, I am
not sure that you are absolutely right. Sections 65 and 66 establish that there
is an illegal situation. It is not as if they were in a legal demonstration. In
section 65 they are in a riot situation, and in section 66 they are in an
If you are by your mere presence in an unlawful situation, in a riot or an
unlawful assembly, then I can understand reverse onus because you are already in
the middle of an illegal situation. It would be totally different if you were
present in a legal situation, and that is where I think the bylaw of the City of
Montreal will not succeed. If you read the situation in section 3 of the bylaws
of the City of Montreal, it says:
No person participating in or present at an assembly, parade or gathering
on public property. . .
It does not say anything about legal. It talks about anywhere you are. Then I
could understand your point. I could understand why you or anyone who contests
would have a better chance of succeeding, but in this case that is not the
What this bill proposes to essentially add is the fact that you are in an
illegal situation and to reverse the onus to show why you should be allowed to
wear a mask. I think there is a nuance between the two. That is my first
Second, there is an element of proportionality in the sentence that seems to
me to go overboard, especially in the context of the unlawful assembly because
in an unlawful assembly, it is a summary conviction offence, and the fact you
are wearing a mask transforms it into an indictable offence. I know exactly what
will happen: The Crown prosecutor will say, ``If you do not plead guilty to a
summary conviction, I will charge you with an indictment,'' and then you are
That is why I think the labeling is defective and might be challenged on
those grounds, much better than in the context of chilling effect. How will you
succeed before a court to say it is unconstitutional on the basis of section 1
of the Constitution? France has a similar regulation, more or less; New York
State has a similar regulation, it has been upheld by the courts; and Britain
has been considering toughening their situation.
I am not sure about the chilling effect and how you will succeed in
convincing the court that by chilling, it is to the point where freedom of
expression is negated or framed to where it has lost its significance. I am not
sure. It is more of a question on proportionality, in my opinion, than anything
Mr. Champ: Just to be clear, when I said I felt that law was
unconstitutional in response to Senator Rivest's question, I was referring to
the Montreal bylaw. I think that is clearly unconstitutional because, as you
pointed out, senator, it does not have the condition that it must be an unlawful
assembly. It is banning masks, and even as the sponsor of the bill has pointed
out, none of us here is trying to prohibit the wearing of masks at lawful
Would this provision be unconstitutional on its own? Is the chilling effect
so great that these provisions in themselves are unconstitutional? I would agree
with you, senator, that that will probably be a pretty high burden because, as
you point out, it is someone already in an unlawful assembly and you already
have section 351(2).
Frankly, I think an argument is there precisely for that reason; you already
have section 351(2), why on earth would you have section 65 or 66? The only
purpose must be to, in some way, inhibit or infringe expressive behaviour. If
you think about it that way, it is kind of a dangerous provision because if you
are someone committing something that is completely a criminal act — for
example, you are smashing windows and stealing stuff — and you are charged with
that, a defence you could make is, ``I may not have been there just to do
peaceful things, but a lot of other people were, and these amendments to
sections 65 and 66 create a chilling effect, and the chilling effect is so great
that it violates section 2(b) of the Charter. Therefore, those provisions
are unconstitutional.'' Someone could do that. You can argue that something is
unconstitutional, even though it does not violate your rights.
In that case, if the police or the prosecutor proceeded with these provisions
as opposed to section 351, someone who actually committed an offence might be
able to get off by successfully striking down those provisions as creating that
I agree with you that that might be a hard case to make, but the question is
still out there: Why have both? I think it is a reasonable answer to say because
you are trying to create that chilling effect, because I still, quite honestly,
have not heard another good answer to that.
Mr. Stribopoulos: To answer the senator's question, I hope you did not
misunderstand me before, and maybe you did. I agree with you, senator. My point
was that it could be challenged. Based on the precedent with this kind of
language in the code, it has been upheld, so I do not think it will be declared
invalid based on it violating the rule with respect to reverse onus. I think
your disproportionality point is valid.
Constitutionality should not be the end all and be all of this discussion.
That is the low-water mark. In terms of criminal law reform, we should be
aspiring for much more than having it constitutional. The question should be
whether it is good public policy and, in my submission, for the reasons Mr.
Champ and I have outlined this afternoon, it is not. It does not solve any
problems that need fixing, and that is something that has to be borne in mind.
Being constitutional does not make it a good law and, given the potential
chilling effect, even though that might not rise to the point of a
constitutional infirmity, that is something you should be concerned about
because we do not want to chill political dissent in this country. This is
Canada, after all. We want to encourage political discussion and protest.
Senator Dagenais: My question is for Mr. Champ. I listened to you and,
as you put it so well, police officers are not lawyers. However, I must say that
lawyers are not police officers, either. On the ground, based on my experience,
if a lawyer sometimes needed to be consulted before action was taken, I cannot
even imagine what the outcome might be; it would be the same as just letting
What is preventing you from admitting that the bill would have a deterrent
effect on professional rioters?
My second question is: would I be mistaken in interpreting your position to
be that, in a riot, the demonstrators have priority over the police officers,
who are there to make people obey the law?
The Deputy Chair: That was for Mr. Champ?
Senator Dagenais: Yes, but maybe Professor Stribopoulos would like to
answer as well.
Mr. Champ: Whether there will be deterrence to those who would
otherwise engage in unlawful activity is an excellent question. My answer is
that obviously there will not. Those who plan to go out and engage in a riot and
have a mask ready to go, which it looks like may have happened in the Vancouver
riots, and the very small number of Black Bloc characters who went to the G20
with the intention of breaking windows and burning police cars, will not be
deterred by this. They will not be deterred one iota. That is the point of
wearing the mask. They go out with the intention of committing a criminal act.
Our concern is for those who plan to go out and demonstrate peacefully.
Although I did not make this point in my earlier submissions, we have some
concerns about section 66 of the Criminal Code generally with regard mens rea.
Where do you draw the line of where a lawful assembly becomes an unlawful
assembly, and how is someone in a big group going to know when a lawful assembly
becomes an unlawful assembly? They might be at the front of the march when
someone at the back starts throwing rocks and stones, they do not know about it,
and the police rush in. What do they do?
That is a real problem, and those people already have a bit of a chill. If
this is added, if they were thinking about wearing a colourful papier mâché
mask, they will be thinking three times about that. It is those peaceful
demonstrators and protesters who will be fearful of engaging in this activity.
Those are the people we are worried about.
Senator Dagenais: One quick comment. For your information, Mr. Champ,
during the student riots in Montreal, police officers were warning people over
loudspeakers that the demonstration was illegal and that they should remove
their masks. People were warned.
Senator Batters: Thank you for coming to the committee today.
Mr. Champ, in your earlier remarks you spoke briefly about the difference, in
your view, between the Olympic situation and the Vancouver Stanley Cup riots,
both of which occurred in the same city. The Olympics stayed peaceful and the
Stanley Cups riots obviously went terribly wrong.
Earlier you were talking about a bunch of drunken hockey fans and, in
response to my colleague's question, you said that it looks like a group went
out with masks. Are you now saying that a certain group went out to cause mayhem
Mr. Champ: I do not know. I am not familiar with the dockets listing
the specific people who did that, but many people were engaging in criminal
behaviour. The looting was outrageous. It is possible that there were some
people planning, under the cover of the Stanley Cup celebrations, win or lose,
to do that. However, that kind of criminal element will exist regardless, and
those kinds of people will not be deterred at all by this kind of bill. They are
out there to commit crimes. They are criminals and they should be caught. I do
not think this kind of provision will deter them.
Senator Batters: What, in you view, was the difference between those
two events? Why did one go so terribly wrong?
Mr. Champ: When I was drawing that comparison, I was talking a bit
more about the police. Perhaps a better comparison with the Olympic protests
might have been the G20. There were large numbers of people protesting at the
Olympics in Vancouver and there were no incidents. With regard to the G20, just
go on YouTube and search ``G20'' and ``police.'' In my view and that of many
others, there were very provocative actions by the police, unconstitutional and
unlawful actions, in my view, and I think that is because they view protests as
bad. The police have a hard job and they have to decide where to draw the line
when things are getting out of control and they have to step in. I appreciate
that, but I think some of them go there thinking that the people should not be
The results of the legal observer program that the BCCLA sponsored with the
Olympics speak for themselves. I think it had a good effect on both the police
and the protesters. It speaks to that idea that sometimes the police can get
carried away in those situations. That was the bigger point I was trying to
The Deputy Chair: Further to Senator Dagenais' point, I am informed
that the Montreal police force not only used loud hailers but also tweeted to
tell demonstrators that their assembly had become unlawful.
Senator Baker: I wish to thank the witnesses for the excellent
testimony they provided. There is no doubt that the remedy that is being sought
here is already contained in 351(2). That has been prosecuted in all the riots
we have referenced here today.
Have either of you any suggestions to make regarding legislation centering
around this problem of riots — drunken rioters in the city of Vancouver when a
hockey game was lost, as all the evidence that was disclosed pointed out, or any
The present Criminal Code, in section 69, says that if a police officer does
not take action, the police officer himself or herself could be liable to
imprisonment for up to two years under section 69. Under section 68, if the
mayor makes a declaration to dispense with the riot, or if it is made in any
other way, and people disobey, it is life imprisonment. Do you have any
suggestions as to what could be added?
Mr. Champ: I do not know of anything in the Criminal Code. I think it
is more the policing techniques that are the difference, training and tactics.
If it comes to a situation where it is game seven of the Stanley Cup, maybe you
do not allow big gatherings under big-screen TVs with open alcohol, which is
essentially what happened in Vancouver. I do not want to criticize the Vancouver
police directly over that, or the organizers of that particular event, but you
could kind of see what was coming.
If you look at Montreal last year, many of you made excellent points about
the proactive actions of the Montreal police. I do not have difficulty saying
that I think the Montreal police, for the most part, did an excellent job of
managing the protests. There were huge numbers of people in the streets, every
day, and for the most part, peaceful. The police were doing things like tweeting
to say, ``Go over here,'' ``Do not go over there,'' and for the most part the
protesters were cooperating with them. If anything, there are probably a lot of
good, positive lessons to be drawn from Montreal and the policing actions.
You are saying if they do not take action. Actually, they did not take action
most of the time. They could have been charging people every day, and they did
I was on a panel with the sergeant who was in charge of those actions — I
apologize; I forget his name — at a conference in Montreal. He was saying that
it is about keeping the peace. They recognize sometimes that if someone is
crossing streets where they are not supposed to, and blocking streets, if the
police come in really hard to try to stop that, they might trigger or escalate
things. It is better to let people have their protests and be done. I think the
Montreal police had a lot of good ideas there. Really, the answer is not the
Criminal Code; it is policing, I think.
Senator Plett: Senator Joyal already touched on the constitutional
question I was going to ask about. Of course, we find out now that the
constitutional issue is no longer that serious for our witness, as it was at the
You mentioned a number of times, Mr. Champ, about the chilling effect this
will have. I, for one, would like to believe that maybe this chilling effect
would allow some people to leave when this becomes an unlawful demonstration.
Personally, if I were to want to demonstrate and protest, I would be happy
and feel more comfortable that we had this law in effect. I would not wear a
mask, but even if I did, I would feel comfortable that we had a law that would
protect me and our fine police officers, who, in fact, did not act too harshly
in Toronto but, rather, maybe waited a little too long before coming in, when
police cars were burning and people were stomping on their police cars. I am not
sure at what point you would like them to come in.
I would like you to again tell me about the aversion you have to this with
the unlawful assembly, and not the lawful assembly, because you keep referring
to how this is a bad law for people who are at a lawful assembly.
Mr. Champ: Maybe I should have made that upfront in my submissions. I
had emphasized this point when I was before the house standing committee, and
that is when does a lawful assembly become an unlawful assembly? It is quite
problematic, from our organization's point of view. There have been
constitutional challenges to it on the mens rea. To date, the three
challenges that have gone forward have failed, so it is still on the books.
However, we do have a concern that that is what can happen.
When does a lawful assembly become an unlawful assembly? It is very
difficult. You mentioned the Black Bloc people, or you were saying that if you
were going to protest, you would be glad that these provisions are there. I can
tell you that no one who goes to a peaceful protest wants those people engaging
in those activities. In fact, if you look at the G20, what happened is that many
of the peaceful protesters were trying to stop those people. When they see those
characters come up and start putting on the black mask, you will often see them
being circled, saying, ``Get out of here.''
Protesters, there is no doubt, do not want it, but it is those people who are
trying to stop those people that I think will be targeted or who will feel they
should not attend.
I do not know if you have ever seen the Château Montebello issue, where the
police took advantage of using masks to try to provoke a reaction. I still
cannot get my head around that, where the police were trying to provoke the
protesters. They pretended they were protesting. They wore masks and tried to
provoke the protesters into some kind of action so that then the police could
say it was an unlawful assembly.
That is what I am getting at. It is the attitude. This bill is all about the
attitude that protests are bad or should not be tolerated, and having police
thinking it is a tool for them to stop it. That is my concern. They already have
the tools. They do not need this one.
Senator Plett: Riots are bad.
Mr. Champ: No doubt.
Senator Joyal: When you mentioned the police provocation, I was
thinking of a police officer dressed up as a hooker on a market street. It is
more or less similar. However, I will not go down that route.
I would like to return to the definition of an unlawful assembly. As you
said, it is well defined in section 63(1) of the code. However, in the context
of the city of Montreal, when the city of Montreal bylaws were modified,
compelling the organizer of a protest to request a permit by providing the
route, and they did not provide the route, would that, in your opinion,
transform that assembly into an unlawful one and then trigger 66(2), that
wearing a mask in that context would be a criminal offence in the context of
Mr. Champ: It may, senator, and that is the concern. Some of the
litigation that will come out of Montreal will probably set some of the law on
protests. Those protests were so prolonged and so well organized, the
interactions between the police and the protesters were so sophisticated, and
the numbers were so huge. In that sense, it was unprecedented. To anyone who
would say to me, ``Why are they complaining? Their tuitions are so low,'' I
would say, ``Who cares? Look at what they are doing. That is so great, that all
those students are sacrificing themselves to go out and protest.'' In terms of
the civic values that were developed during those couple of months, you will
have great citizens coming out of Quebec who were involved in that.
Getting back to your point, that is the problem. You fall over the edge
quickly from a lawful assembly to an unlawful assembly, and how will people know
that? That is the concern. Suddenly they will be hit with it. That is my concern
The Deputy Chair: I am sorry; I really do hate cutting people off and
I hate wielding whips to say, ``Hurry up,'' but it is particularly necessary
Professor Stribopoulos, Mr. Champ, thank you both very much. This has been
very helpful and interesting.
For our second panel this afternoon in our study of Bill C-309, An Act to
amend the Criminal Code (concealment of identity), we have, by video conference,
the pleasure of welcoming Mr. Jim Chu, the Chief of the Vancouver Police
Department, and he is also representing the Canadian Association of Chiefs of
Chief Chu, do you have an opening statement?
Jim Chu, Chief, Vancouver Police Department, Canadian Association of
Chiefs of Police: Yes, I do. Good afternoon, I am speaking on behalf of the
Vancouver Police Department and the Canadian Association of Chiefs of Police,
and I have three things to cover this afternoon. One thing is I will distinguish
the different public order events, because there seems to be some discussion
about whether a legitimate protest is a hockey riot, and I want to distinguish
why we treat them differently.
I want to talk about preventing crimes that occur where people are gathering
in large numbers. I want to talk about gathering evidence when, unfortunately,
problems break out and we need to gather evidence to find out who has committed
arson, break-ins, smashed windows, all that type of thing.
I will open by saying protests in Canada are definitely protected under the
Charter. Canadian police have a track record of facilitating lawful protest. We
uphold the rights of people to freely assemble.
In Vancouver there are two or three events every week, I know in Ottawa there
are several events almost daily, and the vast majority of protests end
peacefully. We know that and we cherish the rights of people to protest.
Recent examples include the Occupy Movement across Canada, Idle No More, when
there have been times the police have been criticized for facilitating the
protest too much and not taking action. However, we want these protests to end
peacefully and do not want to use force.
Sometimes protests become illegal, and they happen in one of two ways. First,
the legitimate protest is hijacked by a smaller group of people who use the
cover of large numbers of people and they will use that event to commit crimes,
they are anarchist types or will create an event specifically to shield their
anarchist objectives in terms of wanting to commit crimes.
We had that type of situation occur during the Winter Olympics when, on
opening ceremony night, the Black Bloc anarchists tried to hijack a legitimate
protest and turn it into something that fortunately it was not and it ended
peacefully. The next day they had a specific event called the ``Heart Attack
March,'' where their specific intent was to cause damage to property and assault
Those are protests, but I want to distinguish the third type of public order
event we have, which is outright hooliganism. The Stanley Cup riot was people
who were drunk, ``celebrating'' the hockey playoffs but obviously who did so it
in a manner that caused great destruction to the city. We have had examples in
London, Ontario, where university students got out of hand. That is outright
hooliganism. We should not confuse that type of event with the protests that we
I also want to say that the police want to prevent crimes from occurring, and
one way to prevent the assaults, arson and mischief is to give police officers
tools to arrest based on reasonable and probable grounds.
For example, if a riot occurs you need an underlying offence. In Vancouver
when we arrested the rioters — and right now we have recommended charges on over
300 individuals — we needed evidence of them committing a break-in, an act of
looting, smashing a car or punching a bystander in the face. When we combine
that with the general circumstances that night, that is when our prosecutors
have accepted a rioting charge.
Simply because someone is standing there yelling and screaming and looking
drunk does not mean you can walk up to them and arrest them for rioting. We need
the underlying offence. I see no legitimate reason why someone should bring a
mask like the one I have here to an event like the situation we had in Vancouver
at the Stanley Cup riots. In fact, this mask was given to me by one of my police
officers who was there on the front lines when all the events broke out.
Basically a guy was running around with this mask on. In that kind of situation,
even though he had not committed an underlying offence of smashing property or
assaulting someone, his premeditation in bringing a mask like this to that event
makes it clear that he is about to commit a criminal offence or likely to do
something. We could arrest that person, if Bill C-309 passes, and say, ``You are
under arrest not only for rioting, but for wearing a mask while rioting.''
We think that is important. That gives us a better tool to separate the
people who are standing there cheering from people intent on committing crimes
because they bring a mask to an event like that.
The other situation, in terms of prevention, is unlawful assembly and what we
call a summary offence only, which means you have to be found ``committing.'' By
creating an offence that says it is illegal to participate in an unlawful
assembly while wearing a mask that gives you the ability to use reasonable and
probable grounds to arrest someone.
I foresee a situation on the street where someone would be masking up in the
Black Bloc technique and we believe, on reasonable and probable grounds, that
they are masking in order to participate in an unlawful assembly. If it is a
dual offence we have the ability to arrest and nip that issue in the bud early
on to prevent all the other crimes from occurring, which we have seen in certain
circumstances across our country.
We believe that is a tool that will be very helpful. Also, unlawful assembly
is a summary offence, but if we create this offence which is dual, which means
indictable or summary, we can fingerprint and create a criminal record, which is
difficult to do in summary offence because you cannot fingerprint under the
Identification of Criminals Act.
These people who travel from city to city wearing the Black Bloc face masks
and covering themselves, we can create a track record. We believe that showing
the history of someone will help, especially if it is the second or third time.
Last but not least, gathering evidence in Vancouver the riot lasted just over
three hours, and our goal that night was to suppress the riot as soon as
possible. Once it was over, we vowed to the citizens of Vancouver — of our
country — that we would hold people accountable. We have been able to do that by
using the massive amount of video evidence from private CCTV, from public
closed-circuit TV, from video taken by the many citizens who were out there with
smart phones. I think the rioters have been trained well because they know that
they cannot escape in that kind of circumstance because people will take footage
of them breaking windows or punching somebody in the face, and the police will
use that as evidence.
My worry is that you will see even more people who, when they decide to riot,
will start covering their faces and bringing masks to those types of events.
They will figure out that if they want to commit those types of crimes, they
need some face covering. I think Parliament can send a clear message to those
people, that you face consequences if you wear a mask during an event like a
Stanley Cup riot or an event of outright hooliganism, where there is a serious
sanction against that. It also helps the police, because then we know definitely
who the troublemakers are. It helps us in terms of that underlying offence that
needs to happen to support the rioting charge.
I will end my remarks there and will be happy to answer questions.
Senator Plett: Thank you, Chief Chu, for being here this afternoon,
and certainly congratulations to the Vancouver Police Department and the fine
work that you do there, not only your department but police departments across
the country. You need to be commended for putting yourselves in the line of
danger on a regular basis, and I appreciate that.
Some individuals, indeed some people we heard from earlier today, are worried
that people wearing masks as part of a legitimate protest or demonstration could
be at risk or charged under the law if they were not able to leave for some
reason; they want to get out and someone is holding them back and the protest
becomes a riot or an unlawful assembly. Given that one of the most important
skills police officers must utilize in their job is obviously discretion, could
you share with the committee what type of training your police officers undergo
to learn how to properly assess the threat level of specific individuals in a
situation such as a riot? Would you personally feel that peaceful demonstrators
would be at real risk of being targeted by overzealous police officers if this
bill became law?
Mr. Chu: First I would say that every police officer is trained to
investigate the crime before proceeding with documentation to recommend a
charge. I am aware that the legislation says ``without lawful excuse.'' In the
event someone is held back or pushed down and cannot get away, in that kind of
circumstance, first, I think police discretion would be to interview that person
to find out what happened and why their face is covered. I believe it is
unlikely that we would even proceed with charges if a legitimate reason were
Second, in British Columbia, and I know across the country, prosecutors apply
a higher standard of accepting charges when it involves civil disobedience.
There is wide latitude that we apply. As you know, across the country,
protesters regularly block roads and sometimes have sit-ins, and there is quite
a bit of discretion applied in both of those circumstances because the Charter
allows people to assemble in a peaceful manner.
Third, I am sure if a charge were a laid and it proceeded to court past those
first two steps, which I think is unlikely, defence lawyers are capable of
presenting arguments that would convince a judge that the person had a
legitimate, lawful reason for wearing a mask.
I do not think it would reach that third level. The issue for police officers
is not with legitimate protestors in lawful protests; our issue is with the
criminals who hijack or specifically use protests as a guise to committing
Senator Plett: Do you specifically train police officers for issues
Mr. Chu: When we have our public order officers deployed, they know
there are certain types of instigators that they will target. When the charges
are laid, we will have follow-up investigators looking for the right evidence.
We also have policy and guidelines that clearly state that we facilitate lawful
protests. Our issues are not with legitimate protesters; our issues are with the
people who turn them into criminal actions.
Senator Plett: Thank you.
Senator Baker: Welcome, Chief Chu. I remember reading and being very
impressed with your testimony. It is almost 20 years ago now; apparently there
was a riot in Vancouver in the mid-1990s, I believe it was, and you were at that
time a sergeant, I believe. You were downtown, and you were trapped in the
middle of two streets in the midst of a huge riot. Certain decisions had to be
made on police action as to what to do. Eventually, the use of rubber bullets or
plastic bullets in those guns — I do not know what they are called; Lee-Enfield
guns of some sort — were used. What came out of that, I found it interesting —
and I am sure the public of Canada would find it interesting — that there is a
section in the Criminal Code that deals specifically with a situation such as
that. The headnote says ``use of force to suppress riot,'' section 32. A police
officer can only use reasonable force, and several police officers were charged
civilly following that riot in the courts.
That was your experience, as the judge put it. Just at the beginning, before
you became the chief, you were not the boss. You were the man who was right in
the middle of it, and you had to make decisions. Could you explain to the
committee, at what point did you make these decisions to use force to dispense a
very out-of-order riot?
Mr. Chu: Thank you for that recollection of 1994. Having lived through
two riots in Vancouver, I hope we do not have a third.
One thing I will say about the two riots, something that distinguishes them,
in 1994 very few people — in fact, I do not recall anyone trying to cover their
faces or even bringing a mask to that riot. What they learned is because of
video cameras out there, they were held accountable afterwards because we saw
their face on an image, we caught them, gathered evidence and they were charged.
That is why in 2011 many more people were trying to cover their faces with
T-shirts or bringing masks like this one.
In terms of using force, our standards apply in riots as they apply in
everyday occurrences. We definitely want to resolve every situation with as
little force as possible. Unfortunately, though, that does not mean you
incrementally apply it because sometimes when all heck breaks loose, you have to
then resort to other means. You are always obligated under the law, however, to
use the least violent means possible.
In this case, though, with this particular rioter — I remember his name, Ryan
Berntt — the officer felt the least force justifiable was to use the ARWEN gun,
which holds a rubber bullet. Unfortunately, in the heat of the moment in those
types of situations, there was a belief that Ryan Berntt bent down and instead
of the ARWEN hitting his chest, it hit his head. The civil suits occurred, and
the police officers were found to have used reasonable force in those
We police hundreds of protests across the country, and very few times has
force been necessary, because we want protests to end peacefully. That is the
objective of police officers. We do not resort to helmets and shields and tear
gas in the first instance, not at all. Police are very patient, and force is
only used as a last resort.
In fact, in Ontario, the police were criticized by a judge for not trying to
end a protest earlier because the judge felt they should have moved in earlier,
yet I talked to the police chief and the head of the OPP detachment, and they
thought they could give it a few more hours and it would end peacefully rather
than trying to enforce a judge's order right at that moment.
Senator Batters: Thank you very much, Chief Chu, for being here today.
One of the issues raised is that police officers may not always disclose
their identity during protests or riots. You may have officers who are
undercover, for example. I would like your views on whether these new offences
would apply to them, and, if so, should there be a specific exemption for peace
officers? In your opinion, would section 25.1 of the code, which provides
justification for certain conduct by public officers, apply?
Mr. Chu: If police officers are deployed in an operational plan to
gather intelligence or to spot criminals in the crowd, then they would have a
lawful excuse to be there. That would be something that they are directed to do
under operational control with certain rules of engagement. I do not see why we
would be thinking about charging the police in that circumstance. The police are
there to apprehend criminals or to do whatever they can to help the officers who
are monitoring the situation to prevent crimes from occurring. I know the
legislation says ``with lawful excuse,'' and I certainly see lawful authority
and duties there.
Senator Batters: That is exactly what I was getting at, whether you
thought that would be sufficient to apply there. Thank you.
Senator Joyal: Chief, thank you for your comments. I understand that,
with clause 3 of the bill, the one that refers to unlawful assembly, anyone
wearing a mask and finding him or herself in an unlawful assembly would be
arrested by you because the mere fact that the person is there and wearing a
mask would be an offence under the code. What would your procedure be? Would you
arrest everyone wearing a mask in those circumstances? What kind of
interrogation will you have to determine if that person had a lawful excuse, and
what is, in your opinion, a lawful excuse? Did you catch all my questions?
Mr. Chu: Yes. The wording ``unlawful assembly'' is in the Criminal
Code, and I think we have all pictured that it is very infrequent that the
police even resort to that level to declare something an unlawful assembly. Even
if we declare something an unlawful assembly, it could be held by the courts
later on to be inappropriately declared. There are all sorts of legal and
factual tests we have to meet before we can say it is an unlawful assembly.
Given that, I am aware of many circumstances in Vancouver, and I will go back
to the Winter Olympics, Day 2, Thornton Park, 100 people dressed from head to
toe in all black, the Black Bloc. From past experience, from other cities, from
knowing their backgrounds, half of them were not even from Vancouver but travel
the circuit in terms of committing anarchist acts. Those are the types of people
we could declare as being in an unlawful assembly, and then we would arrest the
ringleaders and troublemakers. When we have them in jail, we would ask why they
are here and whether they have something to say. If someone had a legitimate
excuse or said, ``Look, I just happened to be walking by, and the hospital gave
me black bandages,'' then I cannot see us charging that person. However, more
often than not, those people have records and histories. These people celebrate
the fact that they are anarchists. If we can establish that for the prosecutors,
then that would result in a successful prosecution.
Senator Joyal: I understand that you have put forward the easiest
situation with the Black Bloc, but if you find yourself with a group of people
wearing all kinds of Halloween or funny masks, once you start arresting someone
wearing a mask, you have to arrest all of them. How will you determine on the
spot that the person wearing that mask should be arrested and then possibly
charged, and another one not? In my opinion, once you have that section of the
code, anyone wearing a mask is in a position of having committed an offence by
just the fact of wearing a mask and being in an unlawful assembly. How will you
manage that? Will you apply the law as I stated it to you? In the field, how
will you proceed?
Mr. Chu: Using the example of Occupy, many dozens — hundreds, of
protests occurred where people wore those masks. We had no reason to declare it
an unlawful assembly. I have explained that I believe it is a very high test
before police will say it is an unlawful assembly. When we do that, we are
always worried that people will accuse the police of starting the violence and
However, let us say the situation degenerated and an unlawful assembly was
declared. Our actions will always be incremental. I know my commanders would
definitely look for the ringleaders first. If that solves the problem, it would
disperse the crowd and that would be good. Every situation is different, so it
is hypothetical, but I believe we would look for the ringleaders first. Then,
once we have the ringleaders in custody, we would be investigating and
interviewing them, asking, ``Why were you here? Why were you dressed with a
mask? And why did you not leave when asked to do so?''
Senator Joyal: That does not completely answer my point, because the
offence we are creating has no mens rea
content in it. It is a factual offence. By the mere fact of being on the spot
and wearing a mask, you have committed an offence under Bill C-309. In other
words, you do not have a choice, in my opinion, to say, ``This one seems to be a
ringleader, so we will arrest this one, and the others can go away.'' By the
mere fact that they have a mask in that unlawful assembly, in my opinion, they
would have committed an offence under the code. That is why I wonder how you
will proceed in relation to the bill as it is written.
Mr. Chu: As I explained earlier, the police would definitely use
discretion. We want to maintain good relations with legitimate protesters. If
the facts were not there, then we probably would not recommend charges. The
second test is prosecutors who would look at the civil disobedience policy, and
there is wider latitude applied in these types of events. Ultimately, I do think
that there must be the mens rea, the criminal intent, as well as the act
itself to support this charge. Ultimately, it would be up to the courts to guide
us in terms of case law and decisions.
Senator Boisvenu: Chief Chu, can you hear the translation? My question
will be very brief. First of all, thank you for your testimony, which was very
enlightening. You no doubt followed the events in Montreal last spring and those
this year. Did you follow those events?
Mr. Chu: Yes.
Senator Boisvenu: The question I would like to ask is this: did the
City of Vancouver contemplate or have the idea at the time of the Stanley Cup
riots of passing a by-law like P-6 in Montreal, which banned wearing masks,
among other things? Did the city consider that?
Mr. Chu: No. With the events in Montreal, there were some protests
because of beliefs. I am not making a judgment on whether they were good or bad
beliefs. However, people were upset about some political decisions. The
Vancouver riot was outright hooliganism. It was drunken, degenerative
debauchery. Those are different types of public order events.
Senator McIntyre: Thank you, Mr. Chu, for your presentation. I have
noted that in some jurisdictions, the U.K. for example, the police have the
power to require a rioter or a person in an unlawful assembly to remove his or
her mask, and failure to do so would result in his or her being charged. Do you
think Bill C-309 should permit or require police officers to ask individuals
participating in riots or unlawful assemblies to remove their masks or other
disguises and only provide for criminal penalties if they refuse? What are your
thoughts on this?
Mr. Chu: I can see a situation where an officer would say, ``Why are
you wearing that mask?'' If the person says, ``I have a good reason,'' and we
say, ``Remove it,'' and they do not remove it, and we say, ``If you do not
remove it, we will arrest you,'' I can see even police practice to establish the
evidentiary trail moving along that escalating type of action and investigative
In terms of whether the legislation should be worded that way, I am not aware
of any other statute that creates the offence in the event of failing to comply
when the police ask you to do something. I stand to be corrected, but I am not
sure that exists.
The Deputy Chair: Before we go to the second round, I have a question,
Chief Chu. I am from Montreal, and I was really flabbergasted when you said you
have only had two riots in 20 years. We have more experience with Stanley Cup
riots and whatnot than I guess Vancouver has.
I wanted to come back to Senator Plett's question at the outset regarding
training. I am assuming that the Vancouver Police Department, like every other
public service, has to make hard choices about what to do with scarce budgets.
Has it seemed like a priority to your force to train your own officers and
members about how to handle riots, or were you perhaps assuming that they come
along so infrequently that you had better focus on other things, like gang
warfare or whatever?
Mr. Chu: You are correct: We are always wrestling with priorities,
ranging from training for dealing with the mentally ill, domestic violence,
training with minority communities and dealing with public order events like
We have created a public order policing unit. That unit is composed of 100
specifically trained officers. We believe we have some good practices and
techniques. During the Winter Olympics, those officers did not wear the masks or
face shields; they wore soft hats and integrated with the crowd. We practiced
meet and greet.
Our training is pretty good, I think. How good was it? There were 150,000
people. Imagine three times BC Place Stadium with people drunk on the streets.
We suppressed that riot in just over three hours; the riots did not continue all
night or for several nights. Out of that whole scenario, we only received two
complaints and both were found unsubstantiated.
The Deputy Chair: Congratulations.
I will have another question on the second round.
Senator Plett: I am from Winnipeg, so we have had even less experience
with riots over Stanley Cups, but hopefully we will have at least a Stanley Cup
in the next while, but without the riot.
It seems like we have defence attorneys who are opposing the legislation and
law enforcement people who are supporting it. One of the reasons we have heard
over and over as to why people are opposing it is the issue of redundancy.
Could you tell us some of the difficulties that the police have had overall
in using the existing provisions of the Criminal Code and charging those
involved in riots and unlawful assemblies where Bill C-309 would alleviate those
Mr. Chu: We believe subsection 351(2), ``disguise with intent'' to
commit an indictment offence, which has been mentioned before, was specifically
written for property offences, like being disguised while committing a bank
robbery, a kidnapping or an assault. I think a specific section written for
public order events like rioting or unlawful assembly is helpful.
Second, there is an offence created for wearing a mask during an unlawful
assembly. I will remind everyone again that unlawful assembly is summary only.
That means you cannot proceed by indictment; you cannot fingerprint if you
arrest someone under that circumstance. You must arrest only when you find the
On the other side, with the ability to arrest someone who you believe will
participate in unlawful assembly while wearing a mask, you have additional
arrest powers, which means you can arrest on reasonable or probable grounds that
they are about to do that. We believe the reasonable and probable grounds when
they are about to commit the offence of unlawful assembly with a mask helps us
in terms of stopping those before they become unlawful assemblies and before the
windows are broken and cars are torched. We believe that helps us, early
Senator Plett: Do you have any idea — and if you do not have a number,
that is fine — how many more people you would have been able to charge in the
Stanley Cup riots in Vancouver had people not been wearing masks? You could not
capture everybody and charge everyone, because it was too much of a melee.
However, if you could now identify people through videos and whatnot, do you
have a rough idea of how many more people would have been brought to justice?
Mr. Chu: My investigators told me there were some people who wore the
masks during the entire event and because of that we will probably never be able
to prove a charge. My concern is that during the next type of riotous situation,
even more people will figure that out and wear those face coverings. I would be
hard pressed to think of any lawful excuse during a hockey riot for why your
face is covered.
Also, I will say that through the video evidence we had about 80 people who
wore face coverings during part of the event. Later on, we caught them without
the face covering. Through our investigative techniques, we were able to satisfy
ourselves that those were the people in both the situations.
I think they have to face greater consequences because, again, rather than
saying, ``I got caught in the moment,'' you have someone who has brought a mask
to the event and they should face greater punishment because of the
Senator Plett: Thank you. I agree with you.
Senator Baker: Thank you for your testimony here today. As I look
around the room, we have Senator White, a former chief of police in Ontario, who
is nodding with approval at everything you say. We also have Senator Dagenais, a
former police officer, nodding with approval at everything you have been saying
You said you could not think of an offence in which, if someone did not carry
out an act, the act would automatically be committed. There are a couple of
instances in the Criminal Code that I am sure you are aware of. If you refuse
the breathalyzer demand at roadside, then you are guilty of impaired driving.
There are a couple of sections that do that.
The one thing I think that you brought to this committee today is the point
that the legislation is not completely redundant. In other words, you pointed
out very cleverly that this will allow someone who perhaps might end up getting
charged with a summary conviction offence to have their fingerprints and
photograph taken. As you point out correctly, someone who is brought in under a
hybrid offence will automatically have to be fingerprinted, photographed and
have various other particulars taken, because it is regarded as a beyond-summary
conviction — an indictable offence.
Chief, there is a provision as well that says that if you are found not
guilty of an indictable offence, then you can apply to get your fingerprints and
your photograph expunged. Some people are not aware of that, but I am sure you
wanted the public to know it is the case that they can get their fingerprints
and photograph back so that you cannot then use them as you were perhaps
suggesting for some other ring leaders of these events.
Mr. Chu: Correct. Thank you for the breathalyzer example; that came to
me just as I was saying that. I could remember something. Thank you, you are
absolutely correct about that.
Senator Baker: Madam Chair, that is the one thing the committee should
be aware of: As the chief points out, it is a major change to bring in the
hybrid offence and enable the police to then, under the Identification of
Criminals Act, take those fingerprints and photographs of those people so
Senator Joyal: Even though they are not charged.
Senator Baker: Even though they will not go to trial on an indictable
offence. They could go to trial summarily.
The Deputy Chair: You inspire me to add another element to the
question I already wanted to ask, Senator Baker.
Chief Chu, as you have pointed out, unlawful assembly is a summary offence
and this bill will create the hybrid offence of wearing a mask during an
unlawful assembly. How often can you envisage the summary offence of
participating in an unlawful assembly leading to indictment for wearing a mask
while you were participating in the unlawful assembly? Do you think that would
be common or rare?
Mr. Chu: I think it would be rare and I am actually hard pressed to
think of a time in my career where we laid unlawful assembly charges. Generally
we have let things go in terms of our discretion in allowing people to assemble.
Of course, if it crosses into a riotous situation then that is when we have
actually laid charges of rioting. I think it would be rare.
Senator White: Thank you for being here, Jim. I know you did an
extensive review on the riots in Vancouver. Did some part of your support of
this legislation come from the results of that review? I know you came up with a
number of potential new practices that would have assisted you in managing that
same type of situation, although I believe Vancouver will not go that far this
year. However, if it were to happen again this year, would this legislation have
allowed you to deal with some of those issues more quickly and would it have
been a deterrent, for example, against some of the people you dealt with that
Mr. Chu: People often ask me what would be the best way to prevent
something like this from happening, in Vancouver or in any Canadian city. I tell
them we need to hold as many people accountable as possible, to let them know
that they will not get away with it and they will be brought to justice.
Now that people realize they will be on video everywhere, so if they take
part in this type of hooligan behaviour they will just cover their faces and
make sure they bring masks to these events. My worry is that that would be seen
as a means of getting away with the crime. Whatever Parliament can do to send
the message that they will not get away with that type of premeditation and that
crime will help deter these events and prevent them from happening again.
Senator White: Jim, you know that in Ottawa we have hundreds of
protests and demonstrations every year. In the five years I was here as chief, I
do not recall one person who wore a mask while protesting for legitimate reasons
— not one. Today we heard some witnesses talk about legitimate protesters who
may want to wear a mask to a legitimate protest. I can tell you that of the
thousands of people we had protesting — in fact we had 4,000 at the Tamil
protest here for 14 days — we did not have one person wear a mask for legitimate
Can you think of one time when someone wore a mask at a legitimate protest
and you said, ``Yeah, you know what, good for you''? Can you think of one case?
Mr. Chu: I do not know of any case where someone came up to us and
said, ``Hey, the reason I am wearing this mask is because of this reason.''
Senator White: Thank you.
Senator Joyal: I might have a nuance on that. When a group speaks for
a very unpopular issue that would stigmatize them in their family or working
milieu, they might want to go to a lawful manifestation and wear a mask. I think
of some of the causes in my mind that, for instance, in the 1970s if you were
manifesting for gay rights people might want to conceal their identity because
it was not really accepted in their family or in their work. I do not make it an
absolute situation. Of course today it does not happen anymore, but in those
days I could have seen such a situation.
Chief Chu, do you have a bylaw in Vancouver whereby the group would be
requested to give their route to the police forces so you would be able to
organize the city so the rights of other citizens to move around freely would
not be disturbed to a point that it becomes a mess?
Mr. Chu: No. We ask the protesters to cooperate and tell us where they
are going. Most often they give us the route because they want our officers to
help with traffic control. They realize that will inconvenience motorists as
little as possible. However, there is no bylaw.
Senator Joyal: In your experience, were you witness to many unlawful
assemblies in Vancouver under section 66 of the code? As Senator White has said,
there are hundreds of manifestations each day in a large city. Do you recollect
how many could have been unlawful assemblies in the context of the code?
Mr. Chu: I think we have been very tolerant in Vancouver as to what is
a legitimate protest, what is unlawful and what is a riot. We have pretty much
let things go until it became a riot. I am not saying there are circumstances
where in hindsight we could not have said unlawful assembly first and then
called it a riot. Generally, we made sure things were well over the line before
we started moving in to make arrests.
Senator Joyal: It is not frequent, in other words?
Mr. Chu: Infrequent, yes. It is very infrequent because we recognize
there is a right to protest.
Senator Joyal: Thank you.
The Deputy Chair: Chief Chu, I would like to go back to the portion of
your testimony where you were talking about 100 members of the Black Bloc in a
particular park in Vancouver. I may have missed something, but it seemed to me
that although the Black Bloc is reputed to go everywhere with the intention of
causing serious trouble, that that particular situation did not lead to serious
trouble. Am I right in concluding that is what happened? If so, can you tell me
how you did it? How did you defuse it?
Mr. Chu: The night before the opening ceremony night, about 4,000
legitimate protesters wandered the streets of Vancouver. They ended up right
outside B.C. Place Stadium, which was the opening ceremony location. The Black
Bloc was in the front trying to incite violence. They were yelling that the
native elders were getting beat up or the police were tear gassing people when
we were just locking arms, no face shields, soft hats, really just holding a
line and taking the abuse that night. The next day, those anarchist types did
not have the legitimate protesters to hide behind. They were on their own and
they were calling themselves the ``Heart Attack March.'' This is the Saturday
morning. The ''Heart Attack March'' aimed to clog the streets of Vancouver. As
they marched up the street they started smashing car windows, department store
windows, and stealing things such as a ladder, and that is when the police moved
in. They clearly went over the line.
Up until then, if we declared that an unlawful assembly and we just arrested
a few, it is a summary offence. That would not have given teeth in terms of
legal sanctions. If I were to replay that movie in my mind, one tool we could
have used was to say it was an unlawful assembly, you are now masked during an
unlawful assembly and we believe on reasonable and probably grounds that you are
going to commit the offence of unlawful assembly so we are going to arrest you
before you smash the windows and before you attack passersby in downtown
The Deputy Chair: You could arrest them under the law as it now
exists, if you chose to do so.
Mr. Chu: When they reach unlawful assembly you have to find
committing, because it is summary offence. Whereas if you are masked and
unlawful assembly, if that passes, and if you believe on reasonable and probable
grounds they are about to do that, that gives you additional powers of arrest.
If you believe on reasonable and probable grounds someone is going to punch
someone in the head you can actually arrest that person because it is a dual
offence, but if you believe someone is going to cause a disturbance, which is a
summary offence, you have no power of arrest until they start causing that
The Deputy Chair: It sounds to me like you may have had three riots in
the last 20 years: That one, the one in 1994 and the hockey one.
Mr. Chu: If you call a riot a disturbance, it is a subjective test.
The Deputy Chair: It is something unpleasant, anyway.
Mr. Chu: We have the sea festival, too.
The Deputy Chair: Do not get me wrong, I truly meant what I said about
Vancouver being a blessed place, but so is my home town. However, Vancouver is
definitely high on anyone's list of blessed places.
Thank you very much, Chief Chu. That concludes our questions. It has been
extremely helpful to hear from you. You bring a particularly important and
unique point of view to the committee's work on this bill. We are grateful to
Honourable senators, that concludes our meeting today. We shall meet again
tomorrow at 10:30 in the morning in this room, and we shall proceed at that
point to clause-by-clause consideration of Bill C-309 and then begin our
consideration of Bill C-299.