In ALG Blog

The federal government recently approved a private member’s bill that will expand police powers yet again. Bill C-309 creates new offences of participating in a riot or an unlawful assembly while wearing a mask. The real problem is that it gives the police power to arrest people before anything confrontational happens at a protest. In the charged atmosphere of a political protest, the police will inevitably use their preemptive arrest powers to stifle legitimate dissent. The bill will affect people exercising free speech rights, a privilege that Canadians have enjoyed since before Confederation.

In the last few years, the temperature at demonstrations in Canada – as elsewhere in the western world – has seemingly increased.  This may reflect frustration over economic disparity, as the gap between rich and poor grows relentlessly.  Whatever the source, the police have seen the problem in binary terms: velvet glove or iron fist.  If they lay back, some complain about anarchy and property damage. If they respond with handcuffs and batons, many wonder about the effect on civil liberties.  Of course, the best solution is for the police to train and adapt to the new phenomenon… and to respond with restraint.

Bill C-309 suggests the police have chosen the force option. And they have the government’s ear. When the bill was before the House of Commons Justice Committee, Victoria Police Chief Jamie Graham explained that the bill will allow the police to use their authority to arrest people they reasonably believe are about to commit an indictable offence. He later testified that he did not think an officer requires evidence that the protestor has a criminal intention when she covers her face before arresting her under the new provisions. The NDP proposed an amendment to explicitly require that the protestor cover her face with intent to participate in a riot or unlawful assembly. The Conservative majority on the committee voted it down.

The bill also makes the crime of Being a Member of an Unlawful Assembly more serious.  If the law is passed, it will be what is known as a hybrid offence.  This means the police have authority to arrest at an earlier point in the evolution of a potentially confrontational demonstration. By changing the offence, C-309 extends the preemptive arrest power to a point when there is not yet even a reasonable fear that the demonstration will turn violent. Except for the vague conspiracy laws, we have never had a criminal offence with such a far-reaching pre-emptive arrest power.

We don’t need this law to protect people or property. The main conduct it captures, wearing a mask while rioting, is already a crime.

The existing Criminal Code offences create a tiered approach to demonstrations. A lawful assembly becomes unlawful if the people taking part in the protest do something that creates an objectively reasonable fear that the situation will escalate to a riot. The protestors do not have to engage in actual violence or property damage at that stage. They just need to do something that would cause reasonable people in the area of the demonstration to fear it will turn violent. Under the current law, the police can arrest members of the unlawful assembly when that reasonable fear is created. Under the proposed law, the police could begin to arrest people when they form a reasonable belief that the protestors are about to create a reasonable fear that they will at some point engage in violence and property damage. My head hurts just thinking about the number of steps into the future that the police need to predict for such an arrest to be justified. An imaginative, paranoid or authoritarian cop will have a field day. Come to think of it, this is exactly what went wrong during the G20 fiasco.

It’s no comfort to those who value freedom of expression to know that convictions under this new law will be a remote and unattainable prize. It will be hard for the Crown to prove preemptive charges that are laid so far in anticipation of trouble.  But the damage is done to freedom of expression when citizens with a message are arrested and removed from a public demonstration.

The proposed law puts enormous amount of trust in the discretion of the police to limit arrests to people truly intent on rioting. The Toronto G20 report recently released by the Office of the Independent Police Review Director gives plenty of reason to believe that trust is misplaced. What exactly have Canadian police done to deserve this extraordinary and unprecedented leap of discretionary trust?  The police will need to exercise magical foresight to anticipate how otherwise innocent conduct is reasonably expected to lead to a riot. There is a real danger that they will rely on stereotypes or misperceptions about marginal political movements as the basis for believing that lawful protestors are about to become an unlawful assembly. The law should be scrapped.

In the adrenalin-charged atmosphere of large public demonstrations, the police require clear and simple legal direction about how to respond. Instead, C-309 expands arrest powers based on a complicated assessment how a protest will unfold that would be difficult to perform in a courtroom let alone on a police line in the midst of a demonstration. It will inevitably result in overreaching and arrests at political demonstrations. The law should be scrapped.

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