1st Session, 41st Parliament,
Volume 148, Issue 161

Wednesday, May 8, 2013
The Honourable Noël A. Kinsella, Speaker

Criminal Code

Bill to Amend—Third Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Plett, seconded by the Honourable Senator Tannas, for the third 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 third 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 by creating two new “concealment of identity” offences.

Subsection 65(2) will prohibit anyone from taking part in a riot “while wearing a mask or other disguise to conceal their identity without lawful excuse.” This is an indictable offence punishable by imprisonment for a term not exceeding 10 years.

Subsection 66(2) will prohibit anyone from participating in an unlawful assembly “while wearing a mask or other disguise to conceal their identity without lawful excuse.” This will be a hybrid offence. The offender will be liable to imprisonment for a term not exceeding five years on conviction for an indictable offence.

For a summary conviction, the offender will be liable to a fine not exceeding $5,000, imprisonment for a term not exceeding six months, or both.

Honorable senators, the Standing Senate Committee on Legal and Constitutional Affairs heard compelling testimony from legal experts on Bill C-309. The Criminal Lawyers’ Association, for example, testified that it could not support Bill C-309 because

“it is not necessary; it is not modest or restrained; it poses some constitutional issues; and it is ripe for abuse.”

Honourable senators, today I will address the three principal concerns that the committee’s witnesses raised: first, that Bill C- 309 is unconstitutional; second, that Bill C-309 is redundant; and third, that Bill C-309 is ineffective relative to the objectives of ensuring public safety and promoting justice.

Honourable senators, several witnesses made strong arguments that Bill C-309 could compromise certain fundamental freedoms enshrined in section 2 of the Canadian Charter of Rights and Freedoms, namely freedom of religion, freedom of expression and freedom of peaceful assembly. In his expert legal submission, Mr. Michael Spratt, a representative of the Criminal Lawyers’ Association testified that there are:

… deleterious and potentially dangerous side effects of this legislation that deal with the people who do not have the mens rea and have lawful excuses. This legislation could result in their arrest, prosecution, suspension of their liberties and violation of their Charter rights that would not have arisen before.

Mr. Ryan Clements, representative of the Canadian Council of Criminal Defence Lawyers, spoke to the committee of what he termed a “chilling effect on freedom.” He said:

I come from the position that to have clarity in the law is advantageous. I come from the position that laws that potentially invite Charter challenges should be discouraged, and I think there are sufficient problems with this legislation as it relates to the chilling effect on freedom of speech and assembly as well as to the way it will be applied on the ground level.

In a letter to our committee dated February 6, 2013, Dan MacRury, Chair of the National Criminal Justice Section of the Canadian Bar Association wrote:

There is a risk that the offences proposed in Bill C-309 may be used inappropriately and applied to a group of individuals (an assembly of three or more persons) in such a way as to interfere with legitimate protesters who wish to remain anonymous.

Some of the witnesses’ concerns, honourable senators, stem from a point that I raised at second reading of this bill. As I said at the outset of my speech today, in setting out the two offences, the bill employs the qualifier “without lawful excuse.” The question that remains unanswered in any definitive form is what constitutes lawful excuse.

Professor Stribopoulos of Osgoode Hall Law School, a representative of the Canadian Civil Liberties Association, offered some ideas to the committee:

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.

Neither Professor Stribopoulos’s examples nor the examples provided by several other witnesses constitute a legal definition of lawful excuse.

On the question of whether this bill will unjustly limit freedom of religion, freedom of expression or freedom of assembly, we are left with a subjective interpretation, clarified neither by the bill itself nor by any existing provision of the Criminal Code. This is especially troubling, honourable senators, because the interpretation of this dangerously ambiguous phrase in the context of a particular case will not be contemplated by lawyers or judges. As Professor Stribopoulos told the committee, deciding what qualifies as a lawful excuse will more often be left to the police in the field. He said:

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 simply left to the exercise of police discretion.

Why is this so important, honourable senators? As Mr. MacRury, of the Canadian Bar Association, wrote to our committee:

The rights to protest and participate in lawful assemblies are fundamental aspects of our constitutional and democratic rights.

[Bill C-309] risks creating the appearance that some forms of peaceful protest or lawful assembly are being criminalized.

Mr. Paul Champ, a representative of the B.C. Civil Liberties Association, raised similar concerns. He said:

… 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…

I would like to add, honourable senators, that the ambiguity in the expression “lawful excuse” has the potential to put the burden of proof on the accused, which is in violation of paragraph 11(c) of the Charter. That section provides that any person charged with an offence has the right “not to be compelled to be a witness in proceedings against that person in respect of the offence.”

Legal experts who addressed the committee gave testimony that seriously questions the bill’s constitutionality.

We have a duty, honourable senators, to ensure that the laws we pass will not infringe upon the supreme rights guaranteed to all Canadians.

However, the legal questions raised by Bill C-309 go beyond complying with the Canadian Charter of Rights and Freedoms.

Professor Stribopoulos summarized the issue in his testimony before the committee:

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.

Honourable senators, there are three key points that I draw from Professor Stribopoulos. First, the ambiguity of the term “lawful excuse” and the possibility that it would displace the burden of proof to the accused mean that Bill C-309 would be applied to unduly limit fundamental freedoms, in contravention of our Constitution. This is the first baseline test for legislation that Professor Stribopoulos and other witnesses identified.

Second, the potential for a chilling effect — a term that several witnesses used — offends the spirit of the Constitution. The Charter of Rights and Freedoms is not merely intended to protect freedom; the Charter promotes freedom, too. Bill C-309 does not encourage legitimate political protest and dissent.

Third, Professor Stribopoulos asks: Is Bill C-309 good public policy? Does it solve problems that need solving? Does it do what it purports to do?

Honourable senators, my next two points — first, that Bill C- 309 is redundant and, second, that it is ineffective — will seek to answer those questions.

On the first point of redundancy, Mr. Spratt of the Criminal Lawyers’ Association testified:

The situations [in] Vancouver, Toronto and Montreal — those were riots. Those were indictable offences. Wearing a mask and participating in those events attracts criminal liability and an indictable offence under section 351(2). This legislation adds nothing to that. Full stop; nothing. It is already there. Simply saying something twice does not improve what is a problem.

At third reading, Senator Plett stated that the police have no power to arrest individuals taking place in an unlawful assembly while concealing their identity. He called this problem the “gap that the bill fills.” Honourable senators, the existing section 66 of the Criminal Code reads:

Every one who is a member of an unlawful assembly is guilty of an offence punishable on summary conviction.

Police have the power to arrest individuals taking part in an unlawful assembly regardless of whether they are concealing their identity.

Senator Plett also stated:

Bill C-309 will give police proactive rather than reactive powers to deal with riots and unlawful assemblies.

Honourable senators, respectfully, this is a misrepresentation of the proposed changes to the Criminal Code. The proposed provisions would still require the individual to conceal their identity while — not “before,” but “while” — they commit the offence of rioting or of participating in an unlawful assembly. As Senator Plett pointed out in third reading, Senator Baker and Senator Joyal explored this issue during the committee hearings.

Respectfully, honourable senators, Senators Baker and Joyal did not, to quote Senator Plett, point out “the ability of the police to make arrests pre-emptively under this proposed legislation.” Senator Baker highlighted that the legislation would allow police to charge someone who is participating in an unlawful protest by concealing their identity with a hybrid offence, rather than a summary conviction offence. Someone who is brought in under a hybrid offence, Senator Baker pointed out, will automatically have to be fingerprinted, photographed and have various other particulars taken. Senator Baker also pointed out, however, that if the individual is not found guilty of an indictable offence, he can apply to have his fingerprints and photographs expunged.

Senator Joyal pointed out that Bill C-309 problematically reverses the onus, so that an individual who is wearing a mask during a lawful assembly that changes to an unlawful assembly will be required, by her mere presence, to show why she should be allowed to wear that mask. This bill does not fundamentally change the police’s powers of arrest before rioting begins.

An unlawful assembly, according to section 63 of the Criminal Code, occurs when three or more persons assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear that they will disturb the peace tumultuously. In other words, honourable senators, an unlawful assembly occurs before a riot. According to section 64, “a riot is an unlawful assembly that has begun to disturb the peace.”

Under the existing Criminal Code, honourable senators, a person can be charged with participating in an unlawful assembly under section 63 before they riot. We do not need to pass Bill C- 309 to give police that power; it already exists.

The effect of passing redundant legislation could actually make things worse, according to the testimony from Professor Stribopoulos. He said:

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 as to 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.

Honourable senators, this brings me to my final point: Bill C- 309 is ineffective. To quote Mr. Spratt:

The obvious reason why so few people were identified in the G20 demonstrations in Toronto and the Vancouver riots is because some of them were wearing masks, which makes it hard to identify. The problem is this bill does not correct that.

This bill sort of makes it doubly illegal to do what was already illegal and what did not deter them in the first place. This bill will not give cameras superpowers to see through masks, and it will not correct the problem of identification.

Mr. Spratt reminded us once again that a redundant law will not assist in identifying anyone or prevent unlawful behaviour.

Mr. Clements, of the Canadian Council of Criminal Defence Lawyers, echoed those comments. I quote:

There is no likelihood whatsoever that this legislation will have an effect on those who choose to riot in those exceptional circumstances, for them to not conceal their identity.

Mr. Champ, of the B.C. Civil Liberties Association, also talked about whether the bill is likely to serve as a deterrent. He said:

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.

Honourable senators, this legislation is deficient on several accounts: It threatens fundamental freedoms; it replicates existing Criminal Code provisions; and it does not address the real public policy objective, which is promoting peaceful protests while protecting the public from rioters and others who assemble unlawfully.

In our desperation to solve problems, we too often resort to legislation. Sadly, we now live in an age of over-legislation. There is a danger in passing laws that propose to deal with a problem but which in reality contribute very little to the solution. There is even more danger in passing a law that fails in its objective and creates new problems.

Moreover, the law to prohibit a person from concealing their identity when committing an indictable offence already exists in our Criminal Code.

Honourable senators, the opinions of the legal experts who appeared before the committee clearly show that Bill C-309 falls into this second category. Not only is the bill completely useless, but it is also extremely harmful. It may well be that this bill violates the Charter, is redundant and discourages peaceful protests but not riots.

Bill C-309, as its short title ambitiously sets out, will not prevent rioters from concealing their identity, but it will cause serious damage to our democratic culture, while placing an even heavier load on our already overburdened justice system. Rather than solving a problem, this bill creates more problems.

I urge all senators to carefully consider the harmful effects that Bill C-309 will have on liberty, justice and safety in Canada if it is passed.

Hon. Donald Neil Plett: Will the honourable senator take a question?

Senator Jaffer: Yes.

Senator Plett: Thank you. Senator Jaffer took some of the quotes out of the speech that I made, and I am not sure whether the implication given was that I had implied that either Senators Joyal or Baker supported this legislation; that certainly is not what I did and never intended to do.

As honourable senators recall from the committee hearings, it was the defence attorneys who seemed to oppose the legislation and the law enforcement people who supported it; in fact, Chief Chu was very clear in making comments that many of the crimes in the Vancouver riots would have been prevented had this law been in place.

I want to quote Senator Baker and ask Senator Jaffer what she would say about his words. I know she alluded to them in her speech, but I want to quote this for the record.

Senator Baker stated on April 18, in asking questions of the witness, Chief Chu from Vancouver:

The one thing I think that you brought to this committee today is the point that the legislation is not completely redundant.

This is from an honourable senator on Senator Jaffer’s side.

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 —

Again, this is in reference to Chief Chu.

— 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.

Senator Baker is saying, as I suggested, that it is not entirely redundant. Could the senator comment on that?

Senator Jaffer: I thank Senator Plett for his question. I also want to thank him for joining our committee. I would invite him to come back again to the Legal Committee, as we enjoyed his presence there. I thank the honourable senator for his work on this bill.

The honourable senator stated that Senators Baker and Joyal were not supporting this bill; I never said in my speech they were supporting it. They certainly are not supporting this bill; I can say that with great authority.

The honourable senator said in his speech that defence lawyers are taking certain positions and lawmakers another. I say in all honesty that I spent a whole night worrying about whether I should take the honourable senator up on this issue. I decided that I like him too much and that I would let it go, but now I have no choice but to answer him.

Honourable senators, I have been a lawyer for 40 years, and I am very proud to be a defence lawyer. In my life as a defence lawyer, there have been many people who have been wrongly charged, and there have been many people who I proudly defended because the state is not always correct. Therefore, those defence lawyers who came before us see that reality every day, and I feel that they, as volunteers who come before our committee, do a great service to our state by presenting positions to us regarding where we may be erring. I am proud of the work that defence lawyers do on behalf of Canadians in appearing before the Senate Standing Committee on Legal and Constitutional Affairs.

As for lawmakers, I have never known a lawmaker who would not want another tool in their tool bag to have more tools, but the honourable senator knows — he is a professional plumber — that more tools do not mean you can do your job correctly; more tools just mean you get confused with how many tools you are going to use. That is what this bill will be doing.

Honourable senators, more tools do not make the difference. I bet that if he were going to show me how to do plumbing, Senator Plett would use the same tools he used 30 years ago because they are the most effective. Respectfully, I suggest that more tools do not make the difference, and I salute the defence lawyers who come before us on a volunteer basis and regularly put the position on behalf of the most marginalized people in our country.

Senator Baker did say that, and I agree. I said in my speech that Senator Baker — and he is a colleague of all of us — has a certain position that this bill is not redundant. I respectfully do not agree with him. He is a member of the Legal Committee, and if he wants to elaborate on that, I am sure he will.

I again want to say to Senator Plett that I enjoyed working with him on this bill.

Senator Plett: I know when I stand I am supposed to ask a question at some point so I will try to put one into this, but I want first to thank Senator Jaffer as well. I enjoyed my time on the committee and am looking forward to sponsoring another piece of legislation that will hopefully go to the Standing Senate Committee on Legal and Constitutional Affairs, and I could again serve during that time.

I thank her for her compliment in recognizing me as a professional plumber. I do have a kitchen wrench, a vice grip and a pipe wrench, but I also need a monkey wrench in order to do the job properly, so more tools allow me to do a better job. Honourable senators, I will leave it at that and not ask another question, other than to thank her very much.

(On motion of Senator Tardif, for Senator Joyal, debate adjourned.)