Concealment in an Unlawful Assembly: A New Weapon for Police Officers

[Image] Two protesters wearing homemade Guy Fawkes masks and heavy coats.

Photo by: Dmitri Korobtsov

Yesterday, a new private member’s bill was passed into law in Canada. This bill, C-309, sought to change section 65 and 66 of the Criminal Code to make it illegal to wear a mask at a riot or unlawful assembly. While this may seem like something that could really be in the public good, I am of the opinion that the law is nothing more than a covert attempt by the Harper government to dissuade people from taking part in protests and other demonstrations.

You see, there are two main problems with this law as it exists:

1) The law is defined much too broadly.

I have to admit that part of the reason that the law is defined too broadly is because it relies heavily on other legal terms that are already much too broadly defined. Like most bills, you get into this definitional nightmare where everything is defined in a circle, and as you follow that definition circle, you realize that it could mean just about anything.

For this law, the definition of the situation under which the law can be utilized was defined as any “unlawful assembly.” However, the term unlawful assembly already has a definition in the Criminal Code of Canada, and is defined as:

63. (1) An unlawful assembly is 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

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

This means that any gathering with three or more people could be considered to be an unlawful assembly so long as the neighbourhood around the gathering fear that the gathering will disturb the peace in some shape or form. As these guidelines for determining whether a gathering is lawful or not are not exactly stringent, the vast majority of large protests and peaceful demonstrations can easily be categorized as unlawful. This means that, as far as this law is concerned, it is no longer legal to wear a mask (or paint your face) for a protest or large gathering.

2) The law is redundant

Of the two main problems that I have with the law, this is likely the bigger of them.

As I have already mentioned, the law seeks to make it illegal to wear a mask in an unlawful assembly. However, as the name “unlawful assembly” implies, it is already illegal to take part in an unlawful assembly. So, basically, what the law is asking for is to make it illegal to do something while doing something illegal.

This leads to this odd enforcement problem of: Can you arrest someone for wearing a mask at an unlawful assembly, but not arrest them for being part of an unlawful assembly? If you can, isn’t it the job of the prosecutor in the case to prove, not only that the protester was wearing a mask, but also that the assembly was unlawful? And if the police officer didn’t arrest the person for being part of an unlawful assembly, doesn’t that mean that the officer didn’t have probable cause to assume that the person was part of an unlawful assembly?

So, basically, for you to be arrested under this law, you have to already be breaking the law. However, because being part of an unlawful assembly is a summary offence, and wearing a mask in an unlawful assembly is an indictable offence, what is essentially happening is that the government is imposing harsher sentences on members of unlawful assemblies (again, which includes just about every large protest or peaceful demonstration).

Conclusion:

What this law boils down to is nothing more than a philosophy of “if we make punishments worse, it will stop.” The stated goal of the bill was to make it illegal for one to conceal their identity while rioting. This would make it easier for police officers to identify, charge, and convict protesters for being part of an unlawful assembly or doing something riotous. However, should the law be enforced as it is stated, the concealment of identity will cause the same exact problems for this new law as it did for the last one, expect this time, the punishments are bigger.

However, the idea that police officers are going to wait till after the fact to charge people with wearing a mask in a protest is truly ludicrous. Empowered by this new law, what is more likely to happen is that police officers will start arresting people with masks prior to the protest becoming a riot. This would allow the police officers to bust up protests faster and levy harsher punishments for otherwise peaceful protesters, possibly escalating the conflict to a point where it boils over into something more dangerous than a simple gathering.

In short, what this bill offers the people of Canada is not more protection against those who choose to riot, cause damage, or bodily harm, but instead a legal weapon that police officers can use to goad peaceful protests into something more dangerous, and thus, more arrestable.

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