A new private Members Bill — Bill C-309 — will make it illegal for demonstrators to cover their faces during “tumultuous demonstrations,” with a penalty of up to ten years in prison.

Bill C-309, first introduced before the House of Commons last year, would amend the Criminal Code of Canada and impose a five year prison sentence for anyone convicted of the offence and make such an act an indictable offence. A “tumultuous demonstration” could be defined as a “riot” or an “unlawful assembly”.

Activists may choose to wear masks at demonstrations for many reasons, including the wish to conceal their faces, for example, at an anti-police brutality rally in case they face retribution from the police or to protect their identity from police in general. Other reasons may include protecting oneself from the effects of chemical weapons such as tear gas or pepper spray.

Sponsored by Blake Richard of the Alberta Conservative Party, the official title of the bill is: AN ACT TO AMEND THE CRIMINAL CODE (CONCEALMENT OF IDENTITY). THE Short Title is: Preventing Persons from Concealing Their Identity during Riots and Unlawful Assemblies Act.

The first reading was on October 3, 2011, just as Occupy Canada demonstrators began to take shape but also obviously impacted by the G20 Summit protests that rocked Toronto in June 2010 and Vancouver’s Stanley Cup Riots in 2011.

The bill has already passed its second reading in Parliament on February 15, 2012, and has now been referred to the Standing Committee on Justice and Human Rights.

The text of the bill – the amendments of Canada’s Criminal Code – is as follows:

2. Section 65 of the Criminal Code is re-numbered as subsection 65(1) and amended by adding the following:

(2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

3. Section 66 of the Act is renumbered as subsection 66(1) and amended by adding the following:

(2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction

Richards later upped the criminal penalty to ten years to be in line with current laws.

There is already an existing law in Canada entitled “Disguise with Intent” which has already criminalizes the wearing of a disguise while engaging in illegal activities and itself carries a jail sentence up to ten years, but this old bill has a “higher burden of proof” where the state must prove that the individual with their face covered was actually engaging in an illegal act while wearing the disguise or otherwise covering their face.

Bill C-309 on the other hand has a “lower burden of proof” with just intention to commit an illegal act. The new bill if passed would allow the courts to convict — as an indictable offence — anyone wearing a mask who has attended a “tumultuous” demonstration even if they have been preemptively arrested without any evidence of conspiracy or illegal act.

This could mean wearing a mask at a demonstration in itself could put you in conflict with the police if the demonstration was, for example, declared illegal.

According to Christine McLaughlin, “Bill C-309 could pose a serious threat to Canadian rights to participate in peaceful assembly. It would also enhance the power of the state to crack down on dissenters. This is not a positive development for democracy.”

“The Conservatives in Canada like to position themselves as the champions of smaller government, freedom and democracy. However, a state that dictates what we can and cannot wear is Big Government in all the wrong ways. Bill C-309 would place serious limitations on our democratic rights,” she said.

Conservative MP Blake Richards, commented when introducing his Private Member’s bill that, “The simple fact is, people are required to clear the area immediately when riotous behaviour occurs,” said Richards. “I would suggest it (Bill C-309) serves to strengthen legitimate peaceful assembly by giving police new means to act against those who are intent on using peaceful assemblies as a cover for their criminal behaviour.”

It will be interesting to see how the activist community across Canada reacts to Bill C-309. There are already internal divisions within activist movement that fall into the conservative trap of “good activist” vs. “bad activist” which in case, according to Richard’s comments, pit “legitimate peaceful” assemblies vs “criminal” assemblies.

This overt criminalization of activism and resistance – from Indigenous struggles to the fight back against austerity – must unite all activists and we must not let the right wing attack us with their divide and conquer agenda.

Wearing a mask in itself cannot be seen as a criminal act during a demonstration which the police (have the power to) declare an unlawful assembly.

There is not always nefarious intent behind wearing a mask, but rather the rational need to protect oneself from the effects of chemical weapons deployed upon a demonstration as a form of collective punishment.

Or, for example, during a demonstration against a neo-nazi organization where local organizers could face retribution from the very racists in their neighbourhood they are trying to defend the community against.

Feel free to post your comments below.


Krystalline Kraus

krystalline kraus is an intrepid explorer and reporter from Toronto, Canada. A veteran activist and journalist for rabble.ca, she needs no aviator goggles, gas mask or red cape but proceeds fearlessly...