Madam Speaker, I am pleased to speak in support of private member's Bill C-309 introduced in the House of Commons on October 3.
In my remarks today, I will explain why Bill C-309, An Act to amend the Criminal Code (concealment of identity), is consistent with our government's commitment to protect law-abiding citizens and keep our communities safe.
When my colleague from Wild Rose introduced the bill, he indicated two reasons for doing so. The first reason was to create two new offences to discourage the wearing of a mask to conceal identity during an unlawful assembly or riot. Second, my colleague indicated that these offences would facilitate the arrest of rioters at early stages of the commission of these offence.
Why is this important?
First, the results of the bill would be safer communities, which, again, is our government's commitment, and to protect those who lawfully assemble with peaceful intentions, as well as to protect the businesses and properties that are surrounded during protests or other activities.
The volatility and danger of riots has long been recognized at common law. This criminal behaviour is made more serious by wearing a mask for the express purpose of making it more difficult to identify the persons taking part in riots and unlawful assemblies.
As members know, it is quite easy to pull out a digital camera on a BlackBerry or an iPhone, which is why we have seen over the last year people wearing masks during riots. There is an express intent to conceal their identity during criminal behaviour. The bill has been introduced to deal with this issue, to deter people from escalating into the cause of rioting and to hold them accountable for such actions.
The Criminal Code already contains the offence of being a member of an unlawful assembly and taking part in a riot. However, this bill would add a new offence to each of these provisions to address wearing a mask or a disguise to conceal identity without lawful excuse during the commission of either of these offences. It would also provide new penalties to reflect the more serious nature of the new offences.
At the present time, taking part in a riot is an indictable offence with a maximum penalty of imprisonment of two years. The new offence in the bill for taking part in a riot while wearing a mask or other disguise to conceal the identity without lawful excuse would be an indictable offence with a maximum penalty of imprisonment for five years.
Similarly, the current offence for being a member of an unlawful assembly is a summary conviction offence, which is less serious than an indictable offence, with a maximum penalty of a $5,000 fine and/or a maximum term of imprisonment of six months. This difference in penalty reflects the fact that an unlawful assembly precedes a riot.
Bill C-309 would create a new offence of being a member of an unlawful assembly while wearing a mask or other disguise to conceal identity without lawful excuse. The new offence would be a dual procedure offence with a maximum penalty of $5,000 and six months' imprisonment if the prosecution elects to proceed by summary conviction and a maximum penalty of five years' imprisonment if the offence is proceeded with as an indictable offence.
It should be noted that Bill C-309 would fill a gap in the current law. At the present time, persons who wear masks or disguises with the intent to commit an indictable offence, including taking part of a riot, is subject to an offence under subsection 351(2) of the Criminal Code and is liable to a maximum term of imprisonment of 10 years.
However, subsection 351(2) does not apply to summary conviction offences. This means that the Criminal Code does not specifically address the situation of persons participating in an unlawful assembly who wear a mask or other disguise to conceal their identity without lawful excuse.
Essentially, what this means is that when someone participating in a riot knows that he or she will be captured on video on a cellphone and puts on that mask, we now have a way to hold him or her to account in a much clearer way than is currently outlined in common law.
To harmonize maximum penalties available for wearing a mask to disguise while taking part in a riot, and I believe my colleague opposite had discussed this earlier, this government will support an amendment to raise the maximum penalty for the new offence in the bill from 5 years to 10 years.
I want to assure members of this House that the new bill would not target people who wear masks or costumes that may conceal their identity while they are engaged in lawful protests, marches, gatherings or other activities commonly associated with the exercise of freedom and expression of lawful assembly. I will re-emphasize that this would not affect people who are protesting peacefully or are within the context of a law-abiding activity. This would affect people, when the riot act has been called, who don a mask to conceal their identity.
The rights to freedom of expression and lawful assembly are specifically and expressly recognized in the Canadian Charter of Rights and Freedoms. I will explain why this bill would not endanger any of these freedoms.
First, a person cannot be charged with either of the new offences in the bill unless he or she is already engaged in committing the criminal offence of being a member of an unlawful assembly or taking part in a riot. It is only during the commission of either of these offences that the new offence provisions may apply.
A second requirement is that the wearing of the mask or other disguise during the commission of the offence of being part of a riot or unlawful assembly must be done for a specific purpose. This level of intent is referred to as “specific intent” and it is a higher level of intent than general intent.
The prosecutor must prove beyond a reasonable doubt that the person was wearing the mask or other disguise for the purpose of concealing his or her identity while engaged in criminal activity. Implied in this is the concept that the person is concealing his or her identity for an unlawful purpose. Specifically, the person is concealing his or her identity to make it more difficult to be identified for the lawful purpose of law enforcement. As I will discuss in more detail in a moment, this is important because a person who wears a mask for a lawful purpose, such as safety reasons, does not have the specific intent to conceal his or her identity.
The reference to “without a lawful excuse” of each of the new offences in Bill C-309 confirms that the defence of lawful excuse applies to the new offences. This means that even if a person is wearing a mask or disguise to conceal his or her identity while committing the criminal offence of taking part in a riot or participating in an unlawful assembly, he or she would have a defence if the reason for concealing his or her identity is a lawful one. I will explain what I mean by this.
Although the situation may arise, in rare cases there may be circumstances where a person taking part in a riot is, for example, wearing a mask to conceal his or her identity to ensure that he or she is not recognized by someone at the riot who is a threat to his or her personal safety. I expect that in most cases it would be clear from the circumstances that the person is wearing a mask or disguise for the purpose of facilitating his or her anonymous participation in the riot.
As with all criminal offences, the prosecution would be required to prove the intent element of the offence beyond a reasonable doubt. However, the defence of lawful excuses are available to ensure that the new offences with higher penalties do not apply to people who wear masks for lawful purposes, even if they are a member of an unlawful assembly or take part in a riot.
I would like to stress that although these people may not be liable to be charged with one of the new offences in the bill, the current Criminal Code provisions still apply and, thus, these people remain accountable to Canadians for their criminal behaviour.
In closing, I believe this legislation is important because it fills a gap in the current law and clearly denounces the wearing of masks or other disguises to conceal identity without lawful excuse during an unlawful assembly or riot. By denouncing this behaviour that is the antithesis of lawful expression and assembly, the bill underscores the Canadian values of freedom, tolerance, respect and rule of law.
Therefore, for those who have been saying that this would hinder people who are participating in peaceful protest, I believe that it would the opposite. It would deter those who would come, escalate the situation into a riot and then try to conceal their identity so that they are not held accountable to law-abiding Canadian citizens.
At the end of the day, I think a lot of Canadians were shocked by the riotous activity that occurred in two Canadian cities over the last year. This bill is in response to that. As a government, we want to send a strong message to Canadians that we are committed to safe streets and safe communities, and to ensuring that businesses are protected and that the activity of peaceful protest can go on as part of Canadians' rights and freedoms.