If a protestor marches outside, and no one around him can see his face, is he a criminal? Perhaps not as philosophical a question as a tree falling in a forest, but a new proposal from Canada is making people give this some serious thought. Because of the violent riots that took place in the last few years, lawmakers are looking at ways to identify criminals who try to conceal their identities. Wearing masks and scarves to conceal one’s face has become very popular now that everyone uses cellphone cameras at public rallies, protests, or riots; but Canada’s new message for protestors is: You’re only free to protest if you have the guts to show your face.
Big City Riots
Canada would not be the first place to ban masks from protestors. New York has had an anti-mask law since 1845, and Germany banned them in the 1980s, and there are still arrests being made today for such violations. But would Canadian cities benefit from this?
After the initially peaceful 2010 G20 protest in Toronto was interrupted by violent rioters, it became clear that those who were intent on peacefully protesting were showing their faces. “Show your face!” some of the protestors would shout, obviously separating themselves from the chaotic rioters. A review nearly a year following the carnage found over 1100 arrests, making this the highest number of arrests at any one event in Canadian history.
The next year was the national embarrassment when an absurd amount of Vancouverites rioted in the streets because their team lost a hockey game. Vancouver police have since recommended almost 600 charges against their 200th suspect, but the official number of criminals charged is now around 100, with 238 charges between them. Most Vancouverites are trying to find these people to bring them to justice, so far having offerred around 2,000 tips, such as identifying people by pictures, submitting videos, etc.
In a clear contrast to the G20 riots, which were premeditated, the Vancouver 2011 riot was a show of spontaneous aggression and madness. Some might have called it a “crime of passion” (though others would say “a childish lack of self-control, with little foresight of consequences”), but the point is that people were not concealing their faces; so the country got a good look at the criminals. However, people have clearly learned from these mistakes, because Canada’s annual “big-city riot extravaganza” (citation needed) took off a few months ago in Montreal this year, and plenty of protestors are hiding their faces.
This is where the new law begins to look really appealing.
The new “Concealment of Identity Act” was introduced in November of 2011 and passed its second reading in February of this year. It is supposed to change two parts of the Criminal Code of Canada – punishment of a rioter, and punishment for unlawful assembly. Definitions and amendments can be seen here. With regards to facial concealment, section 351.2 of the Criminal Code currently says:
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.
To be clear, the criminalization of mask usage would not apply to peaceful protests, but rather riots or unlawful assemblies. However, as critics like Webernet.ca argue, this is just “doubling up on laws for the same offence.” That is, there is basically already a law for this, but the new proposal doubles the number of years of maximum jail-time. Webernet argues that the new provisions would mean that “assembly becomes unlawful when you are deemed to be about to riot.” And as one NDP member of parliament, Charmaine Borg, says:
[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.
One man who disagrees with Borg is Peter Worthington, co-founder of the Toronto sun, who wrote a few days ago:
The weakness in the legislation is that it seems to apply only to those committing illegal acts. [. . .] Since the bill’s introduction, the penalty has gone up to 10 years.
Sorry, folks, but that isn’t good enough.
I’d argue that any person wearing a mask or disguise at any controversial protest or demonstration, is up to no good, and can be assumed to be contemplating illegal behaviour. [. . .]
Police should not have to wait until a person wearing a mask at a protest does something illegal before arresting him. The mask itself is, or should be, evidence of mischief.
I suppose wearing a mask or disguise might be indicative of intent to conceal one’s identity, but is it really okay to start arresting people just for wrapping a scarf around themselves? Well, the law states that there are “lawful excuses,” so perhaps this law would be rendered useless if Canadians took to the streets in winter. But the biggest flaws in the law stem from the fact that police may have to make judgment calls on what is deemed to be concealment. And subjectivity is not a good thing to rely on when you are making arrests. As the National Post reports:
What, then, is the crime? It is not against the law to wear a mask before a crime, nor should it be. And how are police to judge, or prove, that an accused would have taken part in a riot, if the riot had broken out?
On top of all that is the crime itself: how do you define a mask? Is someone masked if they turn up at a protest in a toque, sunglasses and a scarf? Would demonstrators be required by law to arrive bare-faced and bare-headed at a demonstration in Ottawa in January — where it can get a bit cold in the winter — for fear of being tossed in jail for a decade if the protest gets out of hand? Does a mask that covers only the eyes qualify under the law, and, if so, how does that differ from sunglasses and a hoodie?
I personally think that this is a good idea – at least in theory. People should not be able to hide behind a cotton layer of cowardice and get away with injustice, which was especially prevalent during the G20 riots. But I can foresee a lot of problems with this, and I don’t think someone should spend 10 years in jail just for wearing a piece of clothing. The scariest thing about getting arrested in such a situation would be to prove that you’re innocent. How do you prove that you were not intent on causing mayhem? This sounds like it’s bordering on “thought-crime.”
If used properly, I can imagine this would be a great thing for law enforcement; but unless they explicitly state what clothing is allowed – which would probably be ridiculous if they did – this law may be too complicated to be enforced fairly.
After all, I’d hate to see the Canadian police force literally become the fashion police.
May 19 Update:
May 20 Update: Montreal police teargas protesters, arrest 69
“Thousands of protesters outraged by two laws passed Friday to tamp down civil unrest marched through downtown Montreal on Saturday night, many of them wearing now-illegal masks or hoods.”