Anti-mask bills raise free speech questions

Laws could face constitutional challenge

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Much like the anti-mask bylaw passed in Montreal this May, a new piece of legislation making its way through parliament, Bill C-309, seeks to criminalize the concealment of one’s face during an unlawful assembly or a riot.

C-309, or the Preventing Persons from Concealing Their Identity during Riots and Unlawful Assemblies Act, would amend the criminal code to impose penalties of up to ten years imprisonment for masked individuals taking part in a riot, and up to five years for wearing a mask while a member of an unlawful assembly.

The bill has been debated in the Standing Committee on Justice and Human Rights and was reported back to the House of Commons, where it will be voted on when parliament resumes in September. As a private member’s bill put forth by Conservative MP Blake Richards, it enjoys the backing of the majority government.

Andrew Lokan, an external counsel to the Canadian Civil Liberties Associations, has been studying BIll C-309’s implications in a civil liberties context. He called the federal bill “disproportionate” and said that it will have a “chilling effect on lawful and legitimate protests”.

Speaking with The Daily in May, Lokan predicted that if the bill passes, “people are going to stay away from demonstrations, […] they’re not going to run the risk […] of going to prison for up to 10 years”. He added that “the government is backing bill C – 309, they’re a majority, and if the government wishes it to become law, well, it will. But Canadians can protest against this […] and I think if it does there could well be constitutional challenges”.

Julius Grey, constitutional lawyer based in Montreal, agrees. He said that the bill, if passed, could possibly be found to contravene the Canadian Charter of Rights and Freedoms. For Grey, “It seems to me that under sections 7 and 12 of the Charter, an argument could be made.” Sections seven and twelve of the Charter cover life, liberty, and security of persons and the right not to be subjected to cruel and unusual treatment or punishment.

Grey also highlighted the ambiguity of the unlawful assembly charge. “An assembly can often turn unlawful because of the behaviour of other people, and then you’re in possibly for 5 years”, he said, adding: “I think this type of law is intended to make it extremely dangerous to demonstrate.”

Richards declined The Daily’s request for interview, but commented in parliament that  “anyone who is wearing a mask or a disguise to conceal his or her face in the midst of a riot is exhibiting aggravating behaviour. […] It is hard to imagine that [individuals] who ignore police instructions to depart the area and who, in addition, continue to linger in the vicinity while wearing a disguise are seized by any innocent motives or good intentions in those kind of circumstances.”

Grey called this reasoning “simplistic”, saying that protesters might choose to conceal their faces so as “not to be seen by their parents or teachers or employers, especially once a riot’s started […] all sorts of reasons other than committing an offence.”

Montreal’s anti-mask bylaw

On May 18th, Montréal modified its public security bylaw P-6 to include an anti-mask provision (12-024). Since the beginning of the conflict, P-6 has been responsible for multiple arrests, although Montreal police were not able to provide information as to whether or not the anti-mask provision has been used. Depending on the number of offences, demonstrators arrested could be charged anywhere from $500 to $3000 dollars. An attempt to challenge the bylaw on constitutional grounds was made by Julien Villeneuve, better known as Anarchopanda, at Montreal’s City Court last month. His request to have the bylaw suspended was denied by Justice François Rolland, and Villeneuve will return to court in September to continue the challenge.

As Grey explained, “the municipal bylaw can be challenged on issues of freedom of expression [or] on the grounds that only the federal government has criminal law power” whereas, if passed, C-309  “has to be challenged only on Charter grounds.”

Grey commented that in the case of a constitutional challenge, the verdict would depend on many factors, such as whether the case brought forth was a “sympathetic” one, as well as what he called “the spirit of the times”. “There are certain things you could win in 1980 or 1990 that you couldn’t win today,” he said.

“We’re having an erosion of the great achievements in terms of individual freedom,” Grey continued, “It would be foolish to think that it’s just a Canadian tendency.”