1st Session, 41st Parliament,
Volume 148, Issue 134
Wednesday, February 6, 2013
The Honourable Noël A. Kinsella, Speaker
Criminal Code
Bill to Amend—Second Reading
On the Order:
Resuming debate on the motion of the Honourable Senator Plett, seconded by the Honourable Senator Patterson, for the second reading of Bill C-309, An Act to amend the Criminal Code (concealment of identity).
Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak at second reading of Bill C-309, An Act to amend the Criminal Code (concealment of identity).
Bill C-309 amends sections 65 and 66 of the Criminal Code to make it an offence to wear a mask or other disguise to conceal one’s identity while taking part in a riot or an unlawful assembly.
As parliamentarians, we have a responsibility to ensure that police officers have the tools they need to protect public safety and the rights of peaceful protestors, and we also have a responsibility to engage with and listen to those with whom we disagree. In other words, honourable senators: peace, order, and good government. These are the principles under which section 91 of the Constitution Act of 1867 authorizes Parliament to make laws. Unfortunately, Bill C-309 does not honour these principles.
There are three criticisms of the bill that I will briefly elaborate today. First, Bill C-309 is redundant. Second, the ambiguous wording of Bill C-309 will likely lead to Charter rights violations. Third, excessively harsh penalties under Bill C-309 will undermine its usefulness for law enforcement officials.
I will begin with the redundancy of Bill C-309. The purpose of criminal penalties for rioting or participation in an unlawful assembly is to prevent destruction of property, intimidation of the public or disturbance of the peace. These criminal penalties are already codified in the Criminal Code. Under sections 63, 64, 65 and 66 of the Criminal Code — the latter two of which Bill C-309 seeks to amend — rioting or participating in an unlawful assembly is already a crime.
What about concealing one’s identity while rioting? Honourable senators, this too is already an indictable offence. Section 351(2) of the Criminal Code reads as follows:
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.
Compare that existing provision to the new provision proposed by Bill C-309:
Every person who commits an offence under subsection (1) —
— in other words, honourable senators, whoever commits the indictable offense of rioting —
— while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment of a term not exceeding 10 years.
Honourable senators, this bill suggests that Parliament should amend the Criminal Code using a copy-paste function.
Witnesses testified at the committee stage in the other place that the main challenge in dealing with public riots is not the lack of legislation. The challenge is enforcing existing rules. Law enforcement officials at committee affirmed that alternative policing techniques or additional personnel would have helped at recent riots in Vancouver, Montreal or Toronto.
To paraphrase Osgood Hall’s Professor James Stribopoulos’ testimony before the Commons’ committee, Bill C-309 is a legislative solution in search of a legislative problem.
The problem is not legislative, honourable senators. It is about resources, training, sharing best practices and, most of all, addressing the root causes of riots and unlawful assemblies.
My second criticism of Bill C-309 is that it is ambiguously worded and will therefore likely lead to charter rights violations. Under Bill C-309, a Muslim woman wearing a niqab could be arrested if she was in the wrong place at the wrong time. Under Bill C-309, a sports fan with his face painted could be arrested if he was in the wrong place at the wrong time. Under Bill C-309, a person wearing a mask for health reasons could be wrongfully arrested if he was in the wrong place at the wrong time.
Bill C-309 responds insufficiently to these concerns in its third clause by exempting individuals who conceal their identity with a “lawful excuse.” What constitutes lawful excuse? The concept is not defined in the bill. If one were to ask 10 different lawyers to define the concept, one would likely get 10 different definitions.
Amendments moved by the Liberals in the other place to clarify this wording were not accepted. Instead, police officers are delegated the task of interpreting vague laws rather than enforcing clear ones. Peace, order and good government are the principles under which we are to legislate. As I stated earlier, ambiguity is not conducive to any of those principles.
My third criticism of the bill is that its excessively harsh penalties will undermine its usefulness for law enforcement officials. A proposed legislative shortcoming identified by witnesses at the committee stage in the other place was that existing provisions are too strict and difficult to use in cases involving riots.
The Chief Constable of the Victoria Police Department, Chief Jamie Graham, testified that under the current law — section 351(2) of the Criminal Code dealing with covering one’s face while committing an indictable offence — trying to get charges laid against people wearing a disguise is difficult because the level of intent required by a Crown prosecutor to proceed is, in his view, unreasonably high. Amendments to the Criminal Code should increase the effectiveness of the Canadian criminal justice system, not undermine it.
Honourable senators, Bill C-309 is redundant and will likely compromise the rights of Canadians. The excessive penalties it proposes will adversely affect the fairness and efficacy of our criminal justice system. Preventing and confronting crime is not about replicating Criminal Code provisions, sacrificing constitutionally-enshrined rights or unduly burdening police officers. Preventing and confronting crime is about supporting law enforcement officials, empowering Canadian citizens and addressing the root causes of criminal behaviour.
Honourable senators, proposed section 65(1)(2) states:
Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.
Honourable senators, we are looking at a law that is unclear. What does “other disguise” mean? We are setting laws that are not clear and, therefore, will cause issues for law enforcement. I suggest that honourable senators study this bill very carefully at committee.
The Hon. the Speaker: Are honourable senators ready for the question?
Some Hon. Senators: Question.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Hon. the Speaker: On division.
(Motion agreed to, on division, and bill read second time.)
The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?
(On motion of Senator Comeau, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.)