Bid to unmask protesters hits a snag

Montreal Gazette, June 1, 2013

Federal bill limits expression, say civil liberties advocates


OTTAWA — A new change to the Criminal Code that makes it illegal to wear a mask at a protest or riot will probably be challenged in the courts as limiting freedom of expression, experts say.

The clause makes it a crime for a person to attend an unlawful protest “while wearing a mask or other disguise to conceal their identity without lawful excuse.” Supporters say it is one more tool to help the police maintain order, while civil liberties advocates say it tramples constitutional freedoms.

“It’s outrageous, there’s all kinds of legitimate reasons to mask your face in terms of a protest,” said Micheal Vonn, policy director with the B.C. Civil Liberties Association.

The bill, which just passed the Senate and awaits royal assent, is similar to a bylaw in Montreal that restricts mask-wearing during protests. A challenge to the constitutionality of that bylaw is before Quebec’s Superior Court.

Montreal’s P6 bylaw, amended last year to stipulate demonstrators must provide an itinerary of their march and outlawing masks in most cases, was the focus of a growing protest movement since police began applying it with force this winter, arresting more than 1,000 protesters and fining individuals $637 each, mainly for participating in a protest in which an itinerary was not provided. Montreal’s city council voted to maintain the bylaw in late April.

Alex Norris, of Projet Montréal and an opponent of P6, said he would like to review the change to the Criminal Code before commenting.

“But my understanding is that the Criminal Code prohibition applies to individuals whereas P6 opens the door to mass arrests if just one person in the demonstration is wearing a mask, so it’s much more draconian.”

A spokesman for Montreal Mayor Michael Applebaum said people are still free to protest, but can do so while showing their faces. The by-law, Jonathan Abecassis said, was applied at the discretion of the police. He also wanted to read the Criminal Code changes before commenting further. The mass arrests happen when the itinerary isn’t given to police ahead of time. Individuals are fined for wearing masks, he said.

“P6 is here to stay,” Abecassis added. “Montrealers wanted their city back after the events of last year.”

The federal bill, sponsored by Alberta Tory Blake Richards, was introduced to Parliament in the wake of the G20 protests in Toronto in 2010 and the Vancouver riots following the Stanley Cup playoffs in 2011. Police have complained that masks make it difficult to identify those breaking the law.

While the Montreal bylaw affected only protests in the city, Bill C-309 alters the Criminal Code, which applies to all Canadians, and would allow police to pre-emptively arrest protesters if they wore facial coverings. A conviction could lead to up to 10 years in prison, under the terms of the bill. However, critics say C-309 is likely going to end up in court.

Sen. Serge Joyal, a former lawyer who argued against the bill in the Senate, said the law restricts the constitutional right to freedom of expression.

“The courts in the past have recognized that wearing a mask is a form of expression that is protected,” he said.

“Of course, if you wear a mask to commit a criminal offence, it’s already well prohibited.”

Julien Villeneuve, a philosophy professor who became “Anarchopanda” in a giant panda costume during the Quebec student protests, and is now challenging the Montreal mask law in court, said it is “terrifying” that police will have these expanded powers.

Tom Stamatakis, president of the Canadian Police Association, said there is no reason legitimate protesters should want to hide their identity at a protest.

“There’s a well-established right to express a different opinion,” he said. “It’s respected generally, and particularly by the police.”

Villeneuve disagreed. “It’s really threatening the rights of certain kinds of citizens who assemble publicly … some people might face possible sanctions from their employers if they are seen in the context of certain protests,” he said.

Joyal said that some protesters – particularly those who are protesting dictatorships, and have families abroad still living under those dictatorships – could see their relatives endangered if they were identified.

Supporters of the bill say it helps police address problems with protests, and doesn’t threaten civil liberties.

“It will give police the proactive, rather than a reactive power, to deal with riots and unlawful assemblies,” said Manitoba Sen. Don Plett, who sponsored the bill through the Senate.

“The police are not out there to break up peaceful demonstrations. They are there to provide law and order, and when it turns into a riot, they need to have tools that allow them to deal with that riot,” he said.

Sen. Vern White, former chief of the Ottawa Police Service, said the charge for wearing a mask is easily avoided: don’t attend an unlawful protest, and if you do, take off the mask so you’re not committing two crimes.

However, civil liberties advocates say that this misunderstands the dynamics of a protest, because protesters could get caught without knowing that the police have declared the protest illegal.

“There’s an incident that occurs at the tail end, you’re at the very front, the police now decide that this is going to be an unlawful protest, how are you to know?” Vonn asked.

She pointed out that the intent of the law – to make it easier to arrest people – ignores the fact that the police already have significant powers to arrest protesters who are causing problems because it’s already against the law to riot or break windows, for example.

“It doesn’t add to police powers, except to capture people who shouldn’t be arrested in the first place,” Vonn said.

Sue Montgomery of the Gazette contributed to this report



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