Standing Senate Committee on Legal and Constitutional Affairs
 

THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

EVIDENCE


OTTAWA, Wednesday, April 24, 2013

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:10 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.

[Translation]

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).

[English]

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 seriously.

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 police discretion.

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 individual.

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 expressive content.

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 Toronto.

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 issue.

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 escalation.

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 something else.

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 of 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 offence.

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 amendments, unfortunately.

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.

[Translation]

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?

[English]

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 excuse."

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 innocence.

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 unlawful demonstration.

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:

[Translation]

No person participating in or present at an assembly, parade or gathering on public property…

[English]

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 situation.

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 question.

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 caught.

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 else.

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 assemblies.

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 chilling effect.

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.

[Translation]

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 things happen.

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 if Professor Stribopoulos would like to answer as well.

[English]

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.

[Translation]

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.

[English]

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 and violence?

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 here.

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 make.

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 other riot?

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 not.

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 start.

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 that bill?

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 with that.

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 today.

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 Police.

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 people.

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 mentioned before.

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 provided.

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 criminal acts.

Senator Plett: Do you specifically train police officers for issues like this?

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 circumstances.

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 the problems.

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.

[Translation]

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?

[English]

Mr. Chu: Yes.

[Translation]

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 P6 in Montreal, which banned wearing masks, among other things? Did the city consider that?

[English]

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 practice.

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 riots.

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 difficulties?

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 commission.

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 intervention-wise.

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 premeditation.

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 here today.

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 charged.

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 night?

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 purposes.

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 Vancouver.

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 disturbance.

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 you.

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.

(The committee adjourned.)