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Michael Kergin
View Michael Kergin Profile
Michael Kergin
2013-03-26 13:06
Thank you very much, Chair.
As I mentioned to the clerk of the committee, I really have to confine my remarks I think to the role and the time that I was involved in the truth and reconciliation commission that was mandated and sat from April 2010 to July 2011.
I have not followed Honduran events since that time. One moves on to other things, I guess. I will make comments about the commission, about it's principal findings, it's principal recommendations, and an evaluation of the commission work as it relates to the human rights situation we were looking at.
The truth and reconciliation commission was established by the Government of Honduras, by President Pepe Lobo. Most truth and reconciliation commissions are established by a government; otherwise they would not have an opportunity to get into the records and have as much freedom of movement.
It was a simple mandate really to examine the events leading up to the July 28, 2009, expulsion of President Zelaya, and then to present recommendations to ensure that such events, such a failure of governance, would not happen again.
Interestingly enough, human rights per se or an investigation of human rights per se were not a formal part of the mandate as it was established by the decree.
The commission itself met for about 450 days with the five commissioners. I was the Canadian commissioner, the chair was Guatemalan, one other commissioner was a former minister of justice of Peru and a supreme court justice herself, and then there were two Honduran commissioners—one was the current, at that time, president of the national university and the other was her predecessor. Interestingly enough, each of these two Honduran commissioners had contacts on either side of the political centre, so they were really well connected from left to right.
The commission visited all 18 Honduran provinces and held over 300 meetings, including 20 town halls of people in the very small pueblos or towns around the country. They received testimony from about 150 personalities that were linked to the events of the time of the coup. They collected some 50,000 pages of documentation and stored about 900 items in the video tech; many of our interviews were actually videoed.
The total budget was about $2.5 million for the commission, which by most accounts is not a large amount of money. The commission, however, decided on its own that it was very important to look at the human rights aspects of the situation, in particular during the interim government of Mr. Micheletti. The commission contracted four human rights experts who were selected by the United Nations development program. That was financed by the European Union. They were separate but reported to us, and we took over and put into our own words their report to us.
Those experts operated for about one year and received confidential testimony from approximately 250 victims of alleged human rights abuses. They travelled around the country, as did we, but separately.
The opposition in Honduras, called La Resistencia, established its own what was called Comision de la Verdad, or truth commission. Our commission did attempt several times to contact them to see if we could cooperate together, but for reasons that only that commission best knows, they decided they would prefer to operate on their own, and in fact I believe they did a separate report completely from ours.
Briefly, the key findings from our truth and reconciliation commission found that the forceable removal and extradition of President Zelaya constituted a definite coup d'état. The executive and legislative judicial branches, however, all transgressed the constitution leading up to, during, and after the coup. It was basically a failure of government by the three branches of government.
Micheletti became de facto president on the expulsion of President Zelaya, and he stayed there until the inauguration of President Lobo—the election was in November—in January of 2010. Given the fact that he actually relinquished power at the time of the elections in November 2010, in what we felt were fair and free elections given the circumstances of Honduras at the time, our conclusion was that the election and government of President Lobo itself should be considered a legitimate government.
We felt from our investigations that both the Zelaya and Micheletti regimes had engaged in certain corrupt practices, and finally that there was a range of human rights abuses, including police violence and murder, that occurred and went unpunished during the Micheletti regime of about five months, from July 2009 to December 2009, the same year.
Our key recommendations covered two basic areas: governance on one side, because we felt that the failure of governance had led to the coup, and on the other side the human rights issues. The key recommendations on governance included the following.
The constitution should be amended to add a procedure for the impeachment of the president and senior officials following due process. One of the problems in the constitution was that there was no legal process to impeach President Zelaya should there have been a reason to do so.
Secondly, consideration should be given to passing legislation to hold a constituent assembly in order to review the entrenched powers of the constitution, including the possibility of presidential re-election. It may be remembered that one of the reasons why the military moved against President Zelaya was the impression—although never proven—that he was seeking a second term.
The third recommendation was that political functions that are undertaken by the military should be removed from their mandate. In the Honduran constitution, the military has certain policing powers that we felt were wrong, and they also had the mandate to distribute ballot boxes during the election and to safeguard the election itself. We felt this was not an appropriate use of the armed forces of Honduras.
Fourth, a judicial tribunal should be established with authority to arbitrate disputes between the executive and legislative branches of government. Honduras, like the United States, has divided powers, which occasionally come into dispute. Unfortunately, the judiciary were unable to deal with this. We felt that a judicial tribunal should be established to arbitrate disputes among the three branches.
Fifth, the political parties' machinery should be reformed so as to ensure financial and electoral transparency while including its caucus members in decision-making. We found that the democratic party structure in Honduras was highly undemocratic in terms of excluding members from participating in caucus and indeed the party leadership determining who should be running in different constituencies rather than having an iterative process between the caucus and the leadership.
Finally, under governance, appointments to high-level judicial and legislative watchdog bodies—for example, the superior tribunal of elections—should be depoliticized and should be on the basis of impartial decisions rather than at the will of political representatives of the governing party.
On the human rights side, the commission came up with seven principal recommendations. The first was that the government should pursue, prosecute, and punish perpetrators of human rights abuses during the Micheletti regime, ensuring, however, that due process is observed to those who are accused of human rights abuses.
Secondly, a national plan of reparations should be established, to include restitution, indemnification, and guarantees of protection against reprisals for those having legitimate and verifiable human rights grievances.
Third, the prosecutor general office should be provided with sufficient resources and independence to enable it to establish an investigating unit to respond promptly to future human rights complaints.
Fourth, the actions of the human rights commissioner during the Micheletti regime should be reviewed by an independent committee of Congress. There was a human rights commissioner throughout the Micheletti period. Our commission felt he had not performed according to the terms of reference.
Fifth, the government should review, and as necessary revise, legislation to ensure compatibility with international norms and standards, especially with respect to personal security related to freedom of expression, particularly for journalists, and freedom of association. We felt that the Honduran legislation was lacking in terms of international norms and standards.
Sixth, access by tribal and indigenous people to justice in their own language should be guaranteed. In the Mosquito area, on the coast of Honduras, which we visited, a number of the aboriginal peoples were complaining about not being able to receive justice in their own language.
Finally, the government should ensure compliance with the International Labour Organization convention regarding the duty to consult about the use and exploitation of natural resources in aboriginal territories—a problem I'm sure you're aware of, which is very much indigenous to Central America, where mining companies do not always respect the laws of the aboriginal areas.
Let me give, then, a final brief evaluation of the human rights section of our report.
Internationally, and to some extent domestically, interest in the work and findings of the commission centred on its examination of the human rights situation in the period July 28, 2009, to January 18, 2010, the inauguration of Pepe Lobo. The commission concluded that violations were broadly prevalent during the five months of the Micheletti government. There are indeed factors that might explain, but certainly not excuse, the excessive use of force during this period. There is in Honduras a traditional culture of violence, decentralized control over widely and thinly dispersed police forces, and a lack of professional training at the operational level of the police.
The small country at this time was also suffering a collective paranoia, quite honestly, out of its isolation from the international community, exacerbated by its former president, President Zelaya, testing its borders, with support from such South American heavy-hitters as Brazil, Venezuela, and Argentina. In fact, we concluded that the fact that the OAS expelled Honduras so rapidly—the only other country to be expelled from the OAS, of course, being Cuba—took the OAS out of any brokering or mediating role to try to bring the situation back to a more stable situation, and to some extent, the Hondurans rallied against the OAS at that time.
That said, however, there could never be any justification for the complicity of the senior levels of government, reaching to Micheletti himself, in condoning police violence, in failing to investigate obvious politically inspired assassinations, or in restricting freedom of movement through the imposition of extended curfews without corresponding constitutional authority.
The human rights situation during this period, although grave, remained limited in scope and time compared to the horrors of violations involving mass killings in Guatemala, El Salvador, and Argentina or the torture and targeted assassinations in Peru and Chile at an earlier time. We do not feel they were of that scope, but they were definitely to be condemned.
The failure of institutions, the lack of clarity of governing precepts stemming from a weak constitutional regime, and an insufficiently rooted democratic construct were the principal factors leading to the coup. These inadequacies created the conditions that allowed for the complicity of the Micheletti ad hoc government in the perpetration of violations with respect to personal liberties and security. This assessment in the latter half of 2009 impelled the commission to focus extensively on Honduras's governance regime and to concentrate much of its work on developing recommendations not only to reinforce the rule of law but to find ways to broaden citizens' access to the law. This emphasis also corresponded to a consistent refrain heard during a dozen town hall meetings conducted by the commissioners: the impunity of the few and the inequality of the many before the law.
Let me just end with two quotes that best illustrate this sentiment. Witness number 132 of the victims of human rights indicated: “These wounds are not healed with the passage of time: they are healed by the application of justice.”
My second quote comes from Archbishop Desmond Tutu, who stated in a different place with different problems: “Without justice, there can be no reconciliation. Without reconciliation, there can be no future.”
Thank you.
View Hedy Fry Profile
Lib. (BC)
No. We've seen very clearly how the courts have interpreted the difference between freedom of speech that crosses the line to hate and that causes harm. Right now, if you print an article in the newspaper that is libellous to me, I can seek justice in the courts because there is a limit to freedom of speech in a free and democratic society.
In fact, I have just come back from Vienna, where the Organization for Security and Cooperation in Europe was defending the right to freedom of speech. But it did add that when freedom of speech crosses into hate or becomes libellous, etc., there are ways in which courts can define this so that it will not cause harm. It was very clear that everyone was concerned that every other method of communication in many western European countries and democracies is clearly defined, but under the digital world it isn't. People were talking about finding a way to look at how we define that kind of extraordinary freedom within the digital world because of its very anonymity.
That was a very interesting discussion; it took a whole half day for people to get around it. We had huge media experts and legal experts there who were talking about freedom of speech in a democratic society and about its absolutism, when it reaches a point where it crosses a particular line.
I would hate to see freedom of speech and freedom of expression in any way curtailed in our society, but I do think that when people commit suicide as a result of it or it spreads into these criminal areas, which you cannot now do using normal means of communication....
We have one area of communication that's brand new and that no one has really defined and sewn down and tacked onto.... Basically, the digital world is working in a free and open environment.
View Robert Goguen Profile
CPC (NB)
Thank you, Ms. Fry.
You touched on the question of freedom of speech, and that's what I'd like to deal with.
I note that your bill is going to address cyberbullying by amending three offences, and of course you know them well: criminal harassment, section 264; defamatory libel, section 298; and false messages, section 372, as well as indecent phone calls, of course, covered by section 372. The criminal harassment and defamatory libel provisions would be amended by clarifying that these sections apply to conduct engaged in through the use of a computer. You've heard Mr. Wilks' questions. It's probably already covered in the Criminal Code, but, in any event, the Internet would be included. Of course, there's a more substantive change in section 372, to the extent that the scope of enumerated offences would include, by definition, computer system use or electronic communications.
There are a couple of learned professors who take issue with the criminalization of cyberbullying. They're Professor Lyrissa Lidsky and Andrea Pinzon Garcia of the University of Florida, Levin College of Law. They argue that criminalization of cyberbullying poses a threat to freedom of speech. I'm wondering if you could expand on your ideas on this. From a Canadian perspective, do you think that criminal cyberbullying laws are overreaching in such a way that they offend the charter?
View Hedy Fry Profile
Lib. (BC)
No. I answered that question from Mr. Wilks earlier about the charter. I think in every democratic society we have to find that balance between having freedom of speech or freedom of expression and inflicting serious and severe harm. That's where the Criminal Code has defined certain elements on which freedom of speech infringes, things like hate speech. We know clearly that there's a definition of hate speech, and we know clearly that there is a definition of criminal activity using speech or communications within which to exercise that. So no one, especially people like me.... I'm a Liberal, and I very much believe in the charter, and I very much believe in and agree with freedom of speech and freedom of expression.
As I said earlier on, I like to think that if you ask 10 doctors for a diagnosis, you'll probably get 14. I like to think that if you ask 20 academics for an opinion on anything, you will probably get about 40 opinions. So we all know that it's something in which an opinion is an opinion is an opinion. I have consulted with many academics who have given me another opinion.
I notice on your list of people who are going to be witnesses that in fact a couple of them will tell you why. The police are also saying that they need tools, and that it's very unclear under the law, because the law isn't clarifying this issue with regard to what tools they have and do not have. Nobody is suggesting that police should have the freedom to investigate anything or everything, but they really wanted clarification themselves, because they need to have certain tools in certain areas. The case of Amanda Todd was one example in which they didn't have the tools they needed to deal with the issue of criminal harassment. It wasn't bullying; it wasn't the people who were saying things about her; it was a person criminally harassing her, and they were not able to get to the bottom of that.
View Gary Schellenberger Profile
CPC (ON)
To what extent does the Government of Eritrea allow for free speech, particularly political dissent? And how are journalists treated?
Felix Horne
View Felix Horne Profile
Felix Horne
2013-02-14 13:46
There's no opportunity for free speech, no opportunity for dissent, absolutely nothing. Journalists are imprisoned, unlike anywhere else in Africa. There are many journalists imprisoned. There have been no formal charges, no trials, no one knows where they are, no one knows if they're alive or dead. The situation in Eritrea in terms of free speech is just terrible.
View Pierre Jacob Profile
NDP (QC)
Thank you.
As I understand, individuals, communities or interest groups are not in a position to freely voice any concern they may have regarding mining operations in Eritrea.
Do you have any suggestions for ways that mining companies operating in Eritrea could ensure that locally engaged staff and communities are able to make these companies aware of human rights violations, labour, social or environmental concerns?
View Gary Schellenberger Profile
CPC (ON)
In your opinion, how could Canada best promote respect for the rights to freedom of religion, expression, and association in Indonesia?
John Sifton
View John Sifton Profile
John Sifton
2012-11-29 13:37
I think every government that has an embassy in Jakarta can play a role in telling the President of Indonesia that he needs to get tough on religious extremism, and that the international community is not just going to sit here and watch as this country goes from being a reasonably tolerant Muslim democracy to one that isn't tolerant at all.
How the Canadian embassy does that in Jakarta.... There are a number of things that can be done. You can do everything from bringing other voices into Jakarta to discuss these issues, to promoting events at which different voices can be heard, to just the raw public diplomacy of calling them out, calling the government out, and calling the president out, in particular, on his failure to address this rising extremism.
View Gary Schellenberger Profile
CPC (ON)
Okay. Instead of reading it backwards, I'll read it frontwards.
Do you have concerns regarding respect for the rights to freedom of religion and freedom of expression in Indonesia?
Irshad Manji
View Irshad Manji Profile
Irshad Manji
2012-11-27 13:44
I do. That, in fact, is the central issue here. It's that freedom of expression and freedom of belief, as guaranteed by Indonesia's own constitution, are under assault in Indonesia. That's right.
Neil Reeder
View Neil Reeder Profile
Neil Reeder
2012-10-23 13:06
Thank you very much, Mr. Chairman.
I will present in English, but if there are questions in either of our official languages, I will be very pleased to answer.
I'm going to address the narrow question initially because I was asked to come forward in relation to your motion on the human rights defenders and the Canadian support for the human rights NGOs in Venezuela.
I'd like to speak a bit about our efforts to support human rights and human rights defenders in that country. We were pleased to receive and respond, as you said Mr. Chairman, to the subcommittee's detailed report in June of this year. We're glad to see that the government response was tabled in Parliament this month.
Canada continues to voice its concerns regarding the human rights situation in Venezuela. In 2011 Venezuela underwent its first universal periodic review on human rights at the UN Human Rights Council. The Venezuelan government seemed to view the process as overly critical of the political reforms of the Chavez government. However, the Government of Venezuela did participate in the mechanism and accepted 95 total recommendations.
During Canada's statement, we noted Venezuela's progress on social rights, equality, and efforts to reform the police, but expressed concern about impunity, lack of independence of the judiciary, and challenges to freedom of expression and association.
Canada also called for the Venezuelan government to publicly recognize the legitimate role of human rights defenders.
Canada made eight total recommendations, of which two were accepted. Unfortunately, all recommendations related to the independence of the judiciary, freedom of the press, and the ability of human rights defenders to work freely were rejected.
One of Canada's notable successes in Venezuela in the area of human rights is our annual human rights award. Since 2009 the Canadian embassy in Venezuela has partnered with the Universidad Central, centre for peace and human rights, to create a high profile award in order to recognize the efforts and careers of prominent human rights defenders in Venezuela.
The prize, which is widely publicized, is given out at a large diplomatic event, which is in fact the embassy's largest public event of the year. It also includes a trip to Canada to meet with civil society, academia, and Canadian government officials. The recipient, accompanied by embassy staff, then travels to centres outside the capital of Venezuela to share his or her experiences as a human rights defender.
The prize not only gives recognition to the winner, but has also come to symbolize the public commitment of Canada by providing financial and moral support to civil society organizations, whose role is increasingly questioned by local authorities.
The winner for 2011-12, Lisandro Raul Cubas, the founding member of a prominent NGO called Provea, held dialogues on various topics in Canada in relation to labour, health, and indigenous rights. He also made new contacts and informed stakeholders about the situation of human rights in that country.
He also learned about Canadian mechanisms for monitoring and enforcing human rights which he and his colleagues can now apply in Venezuela. A substantial program of some 20 meetings and activities was organized in Ottawa and Montreal, including a meeting with the Minister of State of Foreign Affairs, Diane Ablonczy, to discuss Venezuela's human rights situation.
The previous year's winner, Feliciano Reyna, was able to learn from the Ontario Human Rights Commission about public consultations and best practices with NGOs in Toronto working for the rights of persons with HIV-AIDS. Mr. Reyna has forged an ongoing relationship with the University of Ottawa human rights centre and has since returned to Canada on two occasions as a board member of CIVICUS, a global civil society network.
The first winner of the prize, Humberto Prado Sifontes, who is the director of an NGO which monitors the rights of prisoners, was able to meet with Corrections Canada officials and visit a number of Canadian prison and detention centres. He uses these models in his advice and advocacy to Venezuelan officials in order to better design buildings and programs to address the country's prison crisis.
All three winners also shared their experiences in different regions of Venezuela. They were able to deliver their messages through public dialogues with academics and students, as well as with various civil society representatives, generating debate on a wide variety of human rights issues relevant to each state that was visited.
Private meetings were also organized in Venezuela with local ombudsmen and other high-level government contacts. The award also allows the winners in Canada's embassy in Venezuela to engage government interlocutors outside the capital, who may not normally participate in such discussions.
The prize is well promoted. The 2011 award was supported by press releases and several radio interviews organized by the embassy, three of which were on prime-time national programs, including two of the most widely listened to programs in Venezuela.
This year's prize competition was launched on September 4 and the call for nominations ends on October 28. The winner is intended to be announced in Caracas on December 10, which is international Human Rights Day. The trips to Canada and around Venezuela will follow in 2013. The announcement and an explanation of the award has been placed on the Government of Canada website through our embassy in Caracas, in Spanish with English and French translations to follow.
Through a relatively small investment, Canada is having an important impact, establishing links with Canadian institutions and Canadian organizations, injecting new ideas and models into Venezuelan NGOs and providing new perspectives on the role of civil society and how to interact with government. It also helps to share Venezuelan experiences and perspectives among the Venezuelans themselves. These exchanges build capacity within NGO leaders and leadership. They also reinforce and multiply Canada's commitment to human rights, a value shared by our partners.
The award plays a role in depoliticizing the promotion and defence of human rights in an environment where restrictions on civil society are tightening. This effort to create non-political and non-polarized spaces for dialogue on human rights, including outside the capital, results in our embassy gaining a better understanding of the country's varied human rights issues. More importantly, this provides a unique opportunity to promote a Canadian foreign policy priority in Venezuela in a non-confrontational and less controversial manner.
The award continues to be an important tool for Canada, but it is not the only way by which our embassy in Caracas achieves its commitments and priorities. In 2011, the embassy of Canada spent over 50% of its annual Canada fund for local initiatives on projects supporting human rights, with the remainder divided between community efforts to improve local governance and citizen security. A portion of the embassy's public diplomacy funds was also allocated to projects supporting human rights. Canada will continue to use these initiatives to encourage the values of human rights, democratic governance, and citizen security. We will also continue to promote human rights in Venezuela by organizing regular meetings with civil society and diplomatic missions and public events to show our support.
Following the recent re-election of President Chavez, Canada will continue its engagement with Venezuela in an attempt to keep the channels of dialogue open with government officials and seek opportunities to raise issues.
Those are the end of my remarks, Mr. Chairman. Merci de votre invitation aujourd'hui.
James Paul Humphries
View James Paul Humphries Profile
James Paul Humphries
2012-05-29 13:19
I can cut it here a little bit and get to where we need to get to quickly.
I just wanted to drop down to the bottom of that page to state and draw to your attention that human trafficking, AIDS, persecution, the drug trade, child enslavement, adult slavery, political prisoners, and so on and so forth, are still quite prominent within the country. Also, there is the lack of open doors for the UN and NGOs to enter the country and to help out.
Under the present-day situation, the Kachin are constantly going through a variety of challenges, which you can see in points one to five, which my wife was going to read, but will not, I guess, at this point. Some of the things that have brought up the challenges are concerning the dam and concerning the Panglong Agreement, which was to state, for them, the idea of federalism.
As we go over to the next page, it states that the war, up to this point, has created over 75,000 internally displaced people. There is a concern for the need for food, clothing, and medicine. Again, the NGOs are not able to get into those places and bring help, like they should, so there are many people who are not able to get food and meet their needs.
I would like to read the recommendations, Mr. Chairman, and then conclude.
First is to strongly encourage the Government of Myanmar to use the Panglong Agreement as a foundation for further discussion in building the road for future peace and harmony within the various ethnic groups.
Second is to offer assistance to the new Myanmar government, in working with Aung San Suu Kyi, to clearly define and implement federalism and to show how it will work throughout the whole of the country.
Third is to encourage the Government of Myanmar to truly commit to the new constitution and to a timeline to help change the constitution, so that it will lean more towards democracy.
Fourth is to advocate with the Government of Myanmar to restore law and order equally throughout the country and to implement, without prejudice, the role of judges and the supreme court.
Fifth is to assist the Government of Myanmar to understand that diversity within a country is not a hindrance, but a blessing.
Sixth is to encourage Myanmar's leaders to truly open the door to freedom of expression, freedom of religion, and freedom to be part of the global community, and to express the need to be free from their fears.
Seventh is to strongly encourage their government to allow not only religious freedom for the people but for the religious leaders to be allowed the right to vote, the right to have membership in a political party, and the freedom to run for political office.
Eighth is to stress that the government put an immediate end to the 20 years of crimes against humanity, war crimes, genocide, and ethnic cleansing that have been going on systematically against the Kayah, Karen, Chin, Pao, Rakhine, Shan, Mon, Kachin, and Wa people.
Our hope is that all the citizens of Myanmar will be able to take their rightful place as citizens of the world, our global village. We hope that all the citizens of Myanmar will not focus on the faults of others but will encourage the potential for all to grow and mature as truly free people.
Our prayer is that the leaders of Myanmar would look beyond their individualism and rather look at their role as a community of leaders who help their citizens succeed as each one uses their gifting and talents under the watchful eye of God Almighty.
We implore you, as a subcommittee on international human rights, to take our concerns to the Canadian government so that the information would become part of a report. This report would be used to show how we as a people called Canadians will respond to the country of Myanmar, its leaders, and its peoples. We ask that human rights violations that are being carried out against their people be addressed. We seek nothing more than our demonstration, as Canadians, to Myanmar that we are willing to help them succeed on their journey of becoming a full-fledged democracy.
Thank for your time, interest, and concern about this issue of human rights.
View Françoise Boivin Profile
NDP (QC)
Our colleague may have misunderstood what is behind this amendment. It is clear that more is needed than what he seems to think, even in Bill C-309. From the outset, our main argument has been that the riot offence already exists. Mr. Chairman, section 351 of the Criminal Code will still be around after this bill has been passed.
I raised my concern right from the start. I am worried that by using different terminology, we could end up with interpretation issues when the time comes to present the indictment to a court of law. The defence lawyer will stand up and say that he doesn't understand why his client is being charged. The fact is that this is a specific offence involving participation in a riot while wearing a mask or other disguise to conceal identity. I think we have to go back to what Mr. Richards was aiming to do when he introduced his bill.
We have tried to use the same terminology. Basically, we agree with the government when it comes to hoodlums, thugs and criminals taking part in demonstrations which are otherwise peaceful and lawful. People are going to make their views known, something which is not illegal in Canada, thanks to the Canadian Charter of Rights and Freedoms and rights such as freedom of expression and freedom of assembly. We wanted to be sure that there would be a specific offence for these kinds of individuals.
Let's look at what the initial purpose of the bill was. The idea was to create an offence related to wearing a mask or other disguise to conceal one's identity while participating in a riot or an unlawful assembly. We can get into a big debate about the semantics surrounding specific intent, but one fact remains. I heard what the official from the Department of Justice was saying earlier. She explained the differences between the two. I don't think she will contradict me on this point, but the Crown has to show that the individual participated in a riot. Participating in a riot does not just mean that you have both feet on the ground where the riot is occurring. People should put that completely out of their mind, because other factors can be involved.
After that, we're saying that the individual will stand up and say that he or she had a lawful excuse. Even the bill states that there must be the intent to disguise one's identity. It will not be the accused having to prove that his intent was to conceal his identity. The Crown will also have to prove that. Imagine a case where someone is taking part in a demonstration against a political leader, any political leader—you can choose whomever you like. That person is well intentioned and, in fact, a lot of people there are wearing a mask portraying the face of this particular political leader. However, at some point the demonstration turns into a riot. That particular individual had no intention whatsoever of participating in a riot and was actually wearing a mask, not to conceal his identity, but rather to express a point of view.
There were clarity issues in that regard. I repeat, the purpose of the amendment is to retain the same terminology, so that it reflects the way the courts are used to interpreting section 351. It is intended to ensure that what we are doing is creating an additional offence. That is my understanding. We are in favour of creating an additional offence—namely, wearing a mask with the intent of participating in a riot or an unlawful assembly. Thus two additional counts would be available to police. The NDP has no objection to that, as long as the provision is properly drafted and people's fundamental rights are upheld. It's a question of how it reads and how it's worded.
I'd like to come back to some of the statements made by my colleague, Mr. Goguen, regarding events in Montreal. It is clear—if you turned on your television this morning, you will know that what is going on there now is not very pretty—that no one accepts that kind of criminal and unacceptable behaviour, which cannot be tolerated in a free and democratic society such as ours.
Unfortunately, as the Quebec Ministers of Public Safety, Justice and Transport were saying, these petty criminals behind the smoke bomb attacks in the Montreal subway are taking advantage of a particular cause to try and impose their anarchist vision on people. That is, first and foremost, what we need to target and try to stop.
We deplore what is happening in Montreal, and we obviously sympathize with the people who are affected by this. Yet how can we arrive at the desired result while still showing respect for our laws and what Canada is all about? I do not think that a piece of legislation in and of itself, including Bill C-309—as currently worded or modified through our amendments—will succeed in changing that kind of attitude.
The idea behind this bill is to ensure that people who want to express themselves will be afraid to do so, and that concerns us. I think it's important to repeat that point. We are talking about deterrence here. When dealing with criminals, I believe that is the purpose that should be served by a law. A person who commits murder, for example, is subject to a given penalty or sentence. That is the very basis of our Criminal Code. It lets people know what will happen to them if they commit this or that crime. That is what the purpose of a Criminal Code should be, as opposed to preventing innocent people from engaging in lawful activities.
Was this bill drafted in the unavowed hope that it would serve the good citizens of Canada, the people for whom the Conservative Party has so much respect that it has removed legal remedies for hate propaganda, under the Charter of Rights and Freedoms, in order to support freedom of expression? People with a good reason to demonstrate, who do so appropriately, who express themselves by wearing a mask, painting their face or maybe even wearing some kind of disguise, may be so afraid of being caught in this kind of situation that they will stop expressing their views. That is my concern, and I believe that people on this side of the table share that concern. I only wish that were so for members on the other side.
In order to prevent people from committing crimes, appropriate measures need to be put in place, as opposed to punishing innocent people. You will say that this may be justified in a free and democratic society. In the City of Montreal, for example, they could decide to ban the wearing of a mask under their bylaws. It is not up to me to tell a municipality what it should or should not do. However, as a lawyer, I question some of this. I believe this was proposed earlier but was struck down by the courts for being too broad a limitation for which there was no justification.
Does the somewhat higher concentration of violence we have been witnessing recently justify violating people's right to freedom of expression? We'll see. Personally, I don't think we're there yet. Witnesses made the point that during the Olympic Games and at other major events, things had gone very well because proper communications were in place. The people who organized these events had their own security staff because they wanted to be sure their cause would not be highjacked by criminals and other individuals for whom we don't have an ounce of sympathy.
In our opinion, the way the bill is drafted will create problems, so much so that, where sections 65 and 66 are concerned, there are as many opinions about what they mean as people around this table.
So, imagine you're in a court of law facing a smart defence lawyer who starts to raise all sorts of questions about specific intent. One could cite the words of our colleague opposite, Mr. Woodworth, in a speech that I found to be absolutely brilliant, talking about whether the intent is specific or not, and so on. You can imagine the kind of debate this would give rise to.
So when in doubt, what happens? The accused is always acquitted. If that is our objective, let's use wording that does not work, could cause confusion and will ensure that we do not achieve the desired goal. In the opposite case, let us instead rely on a provision that has already proven itself. That provision may be difficult to access, but it would act as a deterrent. People would know that if they took part in a riot, not only would they be subject to a given penalty, but if they did so while wearing a mask or face paint or any other disguise, they would be guilty of an indictable offence.
It is directly creating an additional offence to the current offence of participating in a riot, which is subject to a penalty. If the provision is properly drafted and the offender is subject to a five- or ten-year prison term, that may make sense. However, when the provision is vague and subject to interpretation or is confusing, that is a problem. At some point, the accused will get up and say that he had absolutely no such intent. That would be the case even if there had to be proof of intent and the Crown had proven its case in that regard. The fact that a person never removed his or her mask while participating in a riot or deliberately causing damage, well, all of those things are considered to be aggravating factors by the courts in setting the sentence. Now we are making it an offence in the strict sense of the term in relation to the other alleged offence. In my opinion, that meets all the criteria and avoids a lot of additional discussion. It is a serious offence that would be severely punished through the maximum sentences that are provided for. That was the intended goal. Our job is not to show how smart we are, but rather to find wording that reflects what can be found in the Criminal Code and which has already proven its usefulness.
I understand the point raised by Ms. Morency, who referred to section 255. I can conceive of that type of wording being in the Criminal Code, but given Mr. Richards' main objective, as he explained it to us here, and considering what we are aiming to do, this is not so much about bringing in the notion of a lawful excuse as it is about creating a completely separate offence in order to punish this kind of illegal and criminal behaviour. We are talking about someone taking part in a riot and hiding his or her identity with the intent of participating in a riot, as opposed to simply expressing a viewpoint. Let's not focus on the lawful excuse part of this. Let's focus instead on what we are really trying to accomplish, which is to create a second offence relating to rioting and unlawful assembly.
View Raymond Côté Profile
NDP (QC)
Thank you, Mr. Chairman.
When I'm confronted with a difficult problem, I try to use plain old common sense and I especially like using very vivid images to illustrate it. It has to do with the fact that I believe in God. I always try to follow Christ's example. We all know that, in the Scriptures, he used parables to denounce completely unacceptable social realities, in order to make them understandable to the people listening to him.
In my other life, I worked for Ameublements Tanguay for 12 years. I met an enormous number of people during that time. I learned a lot about life. As I listened to my colleague, Françoise, I was reminded of one person I met there. A security guard, who was taking very advanced training to become a security consultant, so that he wouldn't have to be just a salesman selling security systems and equipment, had developed an integrated security concept based on available means and a specific configuration. Working with his client, he saw what it could look like. That man, who also worked at Ameublements Tanguay, pointed to the Frost fence surrounding the warehouse transfer yard, which had barbed wire at the top. He told me it was a way of preventing honest people from inadvertently entering private property.
That example, which may seem ridiculous at first glance, was a very strong image. When it comes to public safety and security, the main problem is that the means used to prevent people from committing a crime have to be balanced. The purpose is perfectly legitimate, as is the case for our colleagues opposite. But we need to avoid security systems that are overly sophisticated, massive and brutal that end up placing tremendous restrictions on individual and collective freedom. People have to be able to move around, assemble and express themselves in public.
Colleagues opposite are poised to reject my colleague's amendment. They want to hide behind a false sense of security by putting up a Frost fence that will considerably limit the freedom of expression of honest people, and the legitimate right of assembly and the right to express one's views in public. That is very disappointing.
I am going to reverse what could be called the burden of proof. No one among the colleagues who have spoken this morning or the witnesses we heard in previous days—and I do mean no one—has been able to assure members of this committee that honest people attending a demonstration which unfortunately gets out of hand and turns into a riot, or who involuntarily end up in an unlawful assembly, will not suffer considerable harm as a result of the provisions of Bill C-309.
Unfortunately, we are not lacking even very recent examples of massive arrests made using the tools currently available under the Criminal Code. I cited the example of 49 arrests made at the Cégep de Limoilou in Beauport-Limoilou at a gathering of three people. That is a terribly high ratio of arrests for a gathering that was intended to be peaceful, yet where excessive means seemed to have been used. I won't make any predictions as to the results of future court summons. An enormous number of people were arrested, including one student who is totally opposed to the strike and is now forced to challenge a fine of about $500. I also reminded the committee of the assemblies, indeed, all the unfortunate events that occurred during the G-20 Summit in Toronto.
I did not intend to go on at length about this and provide a demonstration. I believe my examples were quite eloquent.
Unfortunately, the bill, in its current form, is far more likely to cause harm to honest people than allow our police to legitimately prevent people from committing crimes during unlawful assemblies or riots. What is truly unfortunate is that we are creating a public space that will increasingly be an obstacle course—a space that will be very difficult to access if you are someone wanting to express your opinion, assemble freely and exercise your legitimate right to live your life as a citizen. That is very worrisome. I will conclude on that note.
Thank you.
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