Thursday, 17 November 2011

Bill C-309 Unmasked: Privacy and the Criminalization of Protest

♪ I Always Feel Like / Somebody's Watching Me 


There are ample reasons for covering one's face at an assembly, most of which do not have anything to do with criminal activity. The first is privacy. Let's preempt the chorus of voices claiming there is no expectation of privacy in the public sphere. This is, of course, preposterous. There are limits to this privacy certainly, but there are also limits to what others may do to you. Traversing a public square does not give anyone the right to photograph you or use your likeness. Individuals are not forced to identify themselves to use public parks. In short, there are reasonable expectations of privacy, even in public.


Privacy is a paramount concern, particularly with the overzealous nature of modern police forces and their penchant for Panopticism. Big brother is constantly watching. Take any substantial demonstration where police are summoned (and often outnumber those assembled). Police are often doing two things: digitally scanning the crowd with facial recognition software or recording the crowds for posterity. Again, let's preempt the chorus of dissenters, this time brandishing 'if they have nothing to hide' arguments. There is always a modicum of 'innocent until proven guilty' within society. When this falls apart, even at protests, it is undermined society wide, leading toward a slippery path to summary spot checks. One need look only to the week leading up to the G20 to realize the extent this can go, empowered by law or not. When citizens going about their business may be arbitrarily stopped, searched or detained, we're on the slow path to a police state.


For law enforcement there is, of course, the small problems of Charter rights, notably the freedom from unwarranted search or seizure, arrest, detention, and a right to be 'presumed innocent until proven guilty' in legal proceedings which, when the mood strikes law enforcement officials, can be so willfully abrogated in their entirety.

Clearly there are legitimate reasons to protect one's identity. Privacy is chief among them, but much more broadly than simply being identified by police at a rally. Large demonstrations are often reported by the media, as such there is a possibility that -willingly or not- your face will be widely posted. To avoid this, it is reasonable to cover one's face. Given that pictures on Facebook are often grounds for dismissal, the risk to employment simply by exercising rights to assembly and protest are enough on their own to don a disguise. If you want to avoid your face on the evening news or losing a job because of your extra-circular activities, a face covering is a wise move.

Another reason to wear a mask is for protection. Given the willingness of police officers to forcibly disperse crowds with excessive measures - tear gas and pepper spray being their favourite means - masks or partial disguises are a prudent choice. There is ample evidence to demonstrate that these tactics are used without provocation on peaceful and law abiding assembly goers.

Finally, donning a mask may be a political statement. Guy Fawkes masks have become a ubiquitous symbol of the occupy movement. They are - if somewhat misappropriated - representative of the dominant tropes of the movement, and particularly emblematic of a desire for change. Unlike Fawkes, however, occupiers are neither violent or particularly zealous. Confused perhaps, but it is political nonetheless.

Conservative MP Blake Richard's private members bill - C-309: Preventing Persons from Concealing Their Identity during Riots and Unlawful Assemblies Act - now before Parliament would essentially ban the wearing of masks at outdoor gatherings not sanctioned by authority or with the proper permit papers. The bill would amend to the criminal code as follows:

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.

Sounds simple enough. If you commit a crime while wearing a mask, you face extra jail time. The ramifications of this, however, are potentially much more broad. The bill is also highly flawed in its logic.

First, rioting is already a crime under the criminal code. Enhancing it to criminalize the wearing of a disguise while perpetrating a crime is neither a deterrent nor does it provide any real power to prosecute crime. Criminals wear masks explicitly to avoid being caught. That the individual wore a mask in the conduct of the crime is hardly the problem or the primary target of punishment. The act, coincidentally while wearing a disguise, is the target of punishment.

Secondly, the fact that criminals may wear masks in the execution of a crime - although, not all do - does not mean that all people wearing masks in public are preparing to break the law. This bill effectively criminalizes the wearing of masks and nothing more it. It sidesteps the fact that no crime has actually occurred and penalizes individuals for a mere potentiality. Canada has yet in implement a comprehensive Pre-Crime program and, as such, it becomes incredibly difficult to punish an individual for something they are capable of yet haven't done. Laws, such as those covering conspiracy to commit crimes, still require evidence - planning, coordination, expressed intent - in order to make an arrest. Wearing a mask signals none of these. They are indicated solely through the exercise of an actual crime.

Third, the law is far too broad in its wording, and intentionally so. The bill is not really concerned with the coincidence of masks and riots. Rather it is concerned with gatherings deemed 'unlawful' by authorities but where the only crime to have occurred is a failure to disperse. The act would allow for the arrest of otherwise innocent individuals where they would previously be allowed to disperse, solely on the grounds that they were wearing masks 'without lawful excuse'. In essence, it would become a tool to criminalize and limit peaceful assembly simply if anyone within the crowd was unidentified.

Richard's claims about the need for this legislation is also baseless. He argues that "when trouble starts, people intent on criminal activity depend on being able to 'mask up' to conceal their faces with bandannas, balaclavas or other means to avoid being identified and being held accountable for their actions". This is, of course, preposterous. One need only look at the Vancouver riots or the looting at the Toronto G20 to realize this statement lacks credibility. Not only did most rioters not cover their faces, but they documented their crimes with photographs and Facebook postings. In Toronto, the black bloc was a small and isolated group. In Vancouver, the rioters required no outside agitators to break the law. Apart from bank robberies, most crimes are commissioned without masks. The claim that C-309 is needed to prevent riots or hold people responsible is without weight. Toronto and Vancouver police could have averted the situation, they did not. 

Had this bill been limited solely to exercise of criminal acts - which it is not - it would have been entirely redundant. The inciting of a riot is grounds for arrest, the wearing of a mask would be secondary. The initial crime would be sufficient on its own. Masked or unmasked, perpetrating a crime is the problem. Had this been the real intent, the legislation could simply state that the wearing of a mask or disguise during the commission of a crime - robbery, looting, rioting - was an indictable offense. Since the original crime is already an indictable offense, there is no need for recourse to legislation.

As currently written, the bill could be interpreted as providing leave for police to arrest without cause anyone with any sort of face cover - bandanna, Fawkes mask, veil - and would primarily target protests. It forces individuals into an untenable position in which the ability to exercise Charter rights to assembly becomes antithetical to one's ability to a reasonable degree of privacy without being criminalized. There's a fundamental disconnect when police ignore rioters - some masked, most not - and instead turn their attention to those exercising their rights peacefully. C-309 does little more than provide a further weapon in an already growing police arsenal to silence dissent and prohibit public access to public space. Canadians shouldn't have to trade privacy, a presumption of innocence and protection - from both physical coercion of social costs - in order to fully exercise democratic rights in the public sphere.

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