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A new bill aimed at making the wearing of masks illegal during riots or “unlawful assemblies” is now closer to becoming law in Canada. Bill C-309, known as the Concealment of Identity Act, was introduced by Conservative MP Blake Richards in November 2011 in the wake of the Toronto G20 protests and the Vancouver Stanley Cup Riot. Richards' constituency is Wild Rose, Alberta.
The short title of the proposed act is “Preventing Persons from Concealing Their Identity during Riots and Unlawful Assemblies Act.” It seeks to amend Sections 65 (Punishment of a Rioter) and 66 (Punishment for Unlawful Assembly) of the Criminal Code by adding provisions for those wearing masks. In effect, it will dramatically increase potential penalties for rioting and unlawful assembly while wearing a mask.
The text of the bill can be seen here.
In February 2012 the bill passed its second reading in Parliament and has now been referred to the Standing Committee on Justice and Human Rights. After this, it goes before the House of Commons for a vote. In February, Liberal and Conservative parties voted unanimously in favour of the legislation. The Bloc Quebecois, Green Party and NDP cast 96 votes against the bill. In early May, Justice Minister Rob Nicholson announced that the Conservative majority formally supports the legislation, meaning it is all but assured of becoming law.
Police forces across the country have also declared their support for the bill, as well as the downtown business improvement association of Vancouver.
The bill would create two classes of offence. Those who incite a riot wearing a mask "without lawful excuse" face an indictable offence with prison terms of up to five years.
For those "who participate in an unlawful assembly while wearing a mask or disguise to conceal identity," the charge could be an indictable offence or a summary offence.
Under the summary offence, penalties range up to six months in jail and fines up to $5,000.
Critics note that the criminal code already has a law against wearing a mask “with the intent to commit an indictable offense.” The actual charge, “Disguise with intent,” is a subsection of Section 351 (“Possession of Break-in Instrument”) and was originally intended to punish those who committed robberies while wearing a disguise. S. 351 (2) states:
“Every one who, with intent to commit an indictable offence, has his face masked or coloured or is otherwise disguised is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.”
Police claim the burden of proof is too high under S. 351 (2), with the need to prove a criminal intent in wearing the mask difficult to prove in regards to protesters. They are especially in favour of the proposed bill as they believe it will deter militants from wearing masks, thereby making their task of identifying people from video and photographs much easier.
Reformist groups such as the Canadian Civil Liberties Association have stated they do not believe the proposed amendments would survive a constitutional challenge as they violate the Charter of Rights and Freedoms. NDP MP Charmaine Borg said that the bill "takes away an individual's right to demonstrate anonymously. An individual is not necessarily going to commit a crime just because he or she is wearing a mask at a riot. It is reasonable to think that the person just wants to remain anonymous and protect his or her identity."
“Critics agree that commonly one covers their face to avoid photographs being uploaded to the internet and causing personal or professional problems. Others have pointed out that faces are often covered with kerchiefs in response to police use of chemical-based weapons such as pepper spray and tear gas.
“Activist groups have stated that the bill poses a severe threat to the freedom of assembly. In the era where social media brings people together the technologies the government is involved with like facial recognition software and video surveillance are at an all-time high and are actively being used to identify individuals at protests who may just not wish to be identified.”
In New York, an anti-mask law from 1845 is still used to arrest and charge protesters who wear masks. It was introduced after farmers resisted their eviction and wore leather masks. In Germany, the wearing of masks was banned in the 1980s. In both cases protesters still wear masks on certain occasions. Several Occupy Wall Street protesters have been arrested for violating the ban on masks. In Germany, black bloc militants have altered their uniform black clothing to include hoodies, baseball caps and sunglasses. When they are a strong enough force many militants in Germany still wear masks.
It should be noted that the new Canadian legislation criminalizing the wearing of masks would only be used when a protest has been declared a riot or unlawful assembly. Police would not be empowered to preemptively arrest those wearing masks. Declaring a protest as an unlawful assembly is commonly used in Montreal and is used to legalize mass arrests, a practise commonly seen during the annual march against police brutality in that city (and more recently during the Quebec student protests).
Unlawful Assembly, Section 63 of the Criminal Code of Canada
“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 neighborhood 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.”
The punishment for a summary conviction is imprisonment of up to six months, a $2,000 fine, or both.
Riot, Section 64 of the Criminal Code of Canada
“A riot is an unlawful assembly that has begun to disturb the peace tumultuously.”
Rioting is an indictable offence for which imprisonment of up two years can be imposed.