THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
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 10:30 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
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
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, Department of 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
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
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 same 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
Hon. Senators: Agreed.
The Chair: Agreed. Shall the title stand
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
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.
The Chair: 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
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 practice criminal defence exclusively with the firm of Webber
Schroeder Goldstein Abergel in Ottawa. I appear before you today on behalf
of the Criminal Lawyers' Association. As you are probably aware, the
Criminal Lawyers' Association is one of the largest legal organizations in
Canada with over 1,200 members. We advocate for criminal justice and civil
liberties. We are often consulted by committees such as this committee. It
is always an honour to appear before this committee to deliver our
The Criminal Lawyers' Association is in favour
of legislation that is modest, necessary, fair and constitutional.
Unfortunately, the Criminal Lawyers' Association cannot support Bill C-309
in its current form in that, in our submission, it is not necessary; it is
not modest or restrained; it poses some constitutional issues; and it is
ripe for abuse. I would like to address each of those issues, dealing first
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 tumultuously 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
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
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
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
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
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 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 wear 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.
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. I indicate that 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
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 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
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
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
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 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
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
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
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 fits 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 on 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 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 preventing 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 say that with suggesting 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 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 and thus allowing for wear disguise. I made it clear already
that the common law will certainly be taken into account with respect to
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
We have section 351(2) in Bill C-309 broken
down into two sections, 65 and 66. It appears to me that for a lot of
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
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 a 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
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
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
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
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
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
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
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
Mr. Spratt: Here? No, I am not a Crown
The Chair: Thank you very much, gentlemen,
for your input and assistance. We appreciate it. Enjoy the remainder of the
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
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
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
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
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 commit 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 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
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 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
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 in 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 block 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
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
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
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 lookie-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 further distance recording the event
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
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
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 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 lookie 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 Civic 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
prepared for the worst or as a fortress.
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 Civic Centre, as we do
stand 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 Web
site 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
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
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
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
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 going 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 my best to explain my
understanding of the situation as a public stakeholder in these types of
When the police attend a public demonstration
protest event 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 of 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
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.