OTTAWA – A new change to the Criminal Code that makes it illegal to wear a mask at a protest or riot is likely to 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 British Columbia 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.
Sponsored by Alberta Tory Blake Richards, the federal bill 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 that 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.