Federal legislators are currently debating a proposed law that could carry a 10-year prison term for concealing your identity during a riot.
Introduced last November by Conservative backbencher Blake Richards, Bill C-309 was a private member’s bill inspired by the Stanley Cup riot in Vancouver last June and the G20 riot in Toronto in June 2010.
Richards said police had been seeking better ways to respond to public assemblies that become dangerous.
It is already illegal to take part in a riot, but Bill C-309 would create a separate offence criminalizing the use of a mask while participating in such an action.
The bill is back in the House of Commons on Monday before going to the Senate for final approval.
The bill originally proposed a maximum penalty of five years imprisonment, but last week Richards proposed to increase that to 10 years in order to bring it in line with the existing Criminal Code offences related to wearing a disguise.
When asked about the proposed law, the Canadian Association of Chiefs of Police provided a statement saying, "Those who embolden themselves by masking or hiding their identity while participating in a riot or unlawful assembly have a tremendous impact on the safety of those who exercise their right to protest peacefully and lawfully in this country. A right the CACP supports and defends. They also make investigations of these crimes much more difficult."
When does a protest become a riot?
An unlawful assembly is any gathering that incites fear in a neighbourhood. According to the Criminal Code, it’s "an assembly of three or more persons who, with intent to carry out any common purpose, 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, on reasonable grounds, that they will disturb the peace tumultuously."
A riot is simply defined as, "an unlawful assembly that has begun to disturb the peace tumultuously."
Tom Stamatakis, president of both the Canadian Police Association and the Vancouver Police Union, says that when "protesters start to engage in any kind of assaultive behaviour involving other people, or even protesters themselves or police, or when they’re starting to cause damage to property, to vehicles or business, that changes the situation," from a mere protest to something more severe and criminal.
According to the bill, determining when precisely a gathering becomes rowdy enough to be deemed an unlawful assembly will be left to police. Critics say this could have adverse consequences.
James Stribopoulos, an associate professor at York University's Osgoode Hall law school, told MPs on the House justice committee that it could result in police preemptively arresting lawful protesters who happen to be wearing masks.
What constitutes a mask?
According to the Criminal Code, disguising your face means putting a covering over it or colouring it to conceal your identity.
Critics of Bill C-309 are concerned that the definition of a "disguise" could be unilaterally extended to include things like handkerchiefs, which some protesters use to protect themselves in the event that police deploy tear gas.
Stamatakis says he is sensitive to the nuances of this issue, but says police are able to make that distinction.
"In policing that’s always the challenge – we’re required to use our discretion and judgment in every situation," says Stamatakis.
"Our experience generally is that when people do wear masks, they’re intending to do something more than just loudly advocate for a particular position on a particular issue."
How would the new law change existing laws?
Some of the people who testified in front of the House justice committee, including Stribopoulos, suggested that Bill C-309 is unnecessary because there’s already a law against wearing a disguise to commit an offence.
Section 351 of the Criminal Code, under the heading "Disguise with intent," states that "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."
According to Blake Richards, however, the current law isn’t strong enough. He said that police had told him it was nearly impossible to use the existing offence to charge rioters, since it was originally intended for use in cases of armed robbery.
Bill C-309 would create two classes of offence.
Those who incite a riot while wearing a mask face an indictable offence up to 10 years. Those who participate in such an unlawful assembly while wearing a mask could face up to six months in jail or fines up to $5,000.