Accounting for Law

Ban on masks for rioters increases liability

Strong reaction prompted by a bill imposing a ban on masks being worn during a riot or unlawful assembly may not be warranted, says Toronto criminal lawyer James Miglin, noting the amendments act more like sentencing provisions than independent offences.

Bill C-309, a private member’s bill, is aimed at giving police an added tool to prevent lawful protests from becoming violent riots, and is meant to help police identify people who engage in vandalism or other illegal acts, CBC reports.

The bill makes it illegal to wear a mask or otherwise conceal your identity during a riot or unlawful assembly, the report says, noting it originally proposed a penalty of up to five years, but the House of Commons justice committee amended it and doubled the penalty to up to 10 years in prison for committing the offence.

“If you read the bill, it just adds two new provisions to two existing sections of the Criminal Code,” says Miglin, associate with Edward H. Royle & Associates.

The amendments add new subsections to ss. 65 and 66 of the Criminal Code, which make it an offence to take part in a riot or to be a member of an unlawful assembly, says Miglin. In order to commit one of the new offences, an individual has to have committed one of the existing offences of either taking part in a riot or being a member of an unlawful assembly, he adds.

“In order to be found guilty of wearing a mask or concealing your identity, you have to have committed one of the existing offences,” says Miglin. “While technically the bill may create a new offence, it really just increases the penal sanctions available if you wear a mask or disguise while committing one of these already existing offences.”

The CBC report says the bill was requested by police, municipal authorities and businesses hit hard by riots in Toronto, Vancouver, Montreal and other cities in recent years.

“I don’t really see why it’s necessary,” says Miglin. “In my view, since the new offences require, as a precondition, the individual to either take part in a riot or be a member of an unlawful assembly – both of which are existing criminal offences – it does nothing to increase the power or ability of the police to arrest anyone. The police may choose to target masked people taking part in a riot for arrest more than unmasked people, but they don’t need this new law to do it, as those individuals are already committing an offence. ”

Critics argue the measures could hamper free speech, noting concerns that peaceful protesters could unintentionally find themselves involved in an unlawful assembly, the CBC report says.

While those opposed to the bill say there may be legitimate reasons to wear a mask, Miglin says, they’d first have to say there’s a legitimate reason to be taking part in a riot or an unlawful assembly.

“In my view, the bill does not make otherwise lawful activity - protests, rallies etc. – illegal simply by virtue of one wearing a mask or disguising their identity,” says Miglin.

The practical effect of the bill amendments, he says, is to increase the liability surrounding existing offences.

“I think the question should be framed as do we, as a society, want to increase penalties for rioters and members of unlawful assemblies that wear a disguise or mask when committing the offence,” he says. “ I largely suspect judges don’t need to be told that, they would just look at it as an aggravating circumstance of the offence.”

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