I Wasn’t Born a Panda, but I Have the Right to Become One! P-6 and the Right to Anonymity

“Providing a route and showing your face at demonstrations is reasonable. I’m sure the Sûreté du Québec has hundreds of photos of me protesting, and I’m none the worse for it.”[1]

– Jean-François Lisée, as reported in La Presse on 26 March 2013

 

The statement above, uttered by a government minister, is alarming. Lisée appears to take for granted that the Sûreté du Québec keeps hundreds of photos of many —if not most—demonstrators and, furthermore, he cavalierly implies that the people surveilled are “none the worse for it.”

 

He was responding to questions about Montreal By-law P-6, specifically two new sections added last spring. One requires that demonstrators provide their route in advance. The other forbids wearing a mask during a demonstration. Both sections were added to the by-law on the same day that Law 12 was adopted (earlier infamously known as Bill 78).

 

Yet less than a year ago, Lisée denounced Law 12, citing the Barreau du Québec’s critique at length, even describing it using the French term “liberticide” (literally, “fatal to freedom”). As discussed at length in our earlier text, By-law P-6’s provisions are similar to those of Law 12, which Lisée’s party repealed once it came in to power.

 

Section 3.2 of By-law P-6, which prohibits wearing a mask, was adopted at the same time as section 2.1, which requires protestors to provide their route in advance. Not even Law 12 included such a provision, nor did Quebec City’s Règlement sur la paix et le bon ordre [By-law on peace and order]. The Montreal-specific provision reads as follows:

 

^{3.2. No person who participates in or attends an assembly, parade or gathering on  public property may cover their face without a reasonable motive, namely using a scarf, hood or mask.[2]}

The penalties for violating this provision are set out in section 7 of the By-law:

 

^{7. Any person who contravenes this by-law is guilty of an offence and is liable:}

^{(1) for a first offence, to a fine of $500 to $1,000;
(2) for a second offence, to a fine of $1,000 to $2,000;
(3) for a subsequent offence, to a fine of $2,000 to $3,000.[3]}

 

Violation of Fundamental Rights

 

As highlighted in our previous text, in Quebec the freedom expression is protected by both the Canadian Charter of Rights and Freedoms, part of the Canadian constitution, and the Quebec Charter of human rights and freedoms, a quasi-constitutional law. The same holds for freedom of peaceful assembly. Any expression other than forms of physical violence are protected by section 2(b) of the Canadian Charter and by section 3 of the Quebec Charter. Any infringement of these rights must be justified in the context of a free and democratic society.

 

Section 3 of the Quebec Charter also protects the right to privacy. The Supreme Court has held this protection extends to the right to one’s image and to the right to anonymity.[4]

 

Wearing a mask at a demonstration is an exercise of fundamental rights for two main reasons. First, protest masks themselves often convey a message. For example, a mask adorned with the face of a premier can express outrage or criticism.

 

Aside from that example, a person might simply choose to attend a demonstration anonymously, and this form of expression is also protected. Anonymity might be chosen out of fear of reprisals. Consider a worker who is demonstrating without wanting to be identified by her employer, or a person living with HIV marching in the fight against AIDS who doesn’t want to disclose her status. An employee at a financial institution participating in an anti-globalization protest might also prefer to “mask up,” or even a retired police officer wanting to demonstrate without risking being recognized by his former colleagues.[5] Recall that last spring a young lawyer at the SAAQ was publicly berated by Pierre Moreau, then a government minister, for having helped organize a demonstration.[6] A person should be able to support a cause without the risk of finding themselves on the front page of a newspaper, particularly in our era of ubiquitous cameras.

 

Furthermore, not everyone shares Lisée’s nonchalance about the fact that the police collect and archive images of demonstrators’ faces. It is legitimate to keep surveillance in check. Being on file in a police database should not be a precondition for exercising fundamental rights. The police openly admit they are now carrying out “preventative” arrests at protests, stopping people, detaining them for the full length of the demonstration, and then releasing them without charge.[7] In our view, this approach is in itself is arbitrary and inappropriate. But perhaps worse, it also suggests that police are singling out individuals for arrest based on their file and photos taken of their prior participation in demonstrations.

 

Section 3.2 purports to do away with the right to anonymous protest, as the Barreau du Québec highlighted when it was adopted:

 

^{What’s more, the provision, as drafted, risks giving rise to charges against people seeking to participate in a demonstration without being identified, who have no intention to commit an offence.[8]}

Section 3.2 claims to establish a blanket prohibition on mask-wearing which applies to anyone who is even present at any “assembly, parade or gathering”.[9] The scope of this provision is extremely broad, and would prima facie prohibit either a picnic in a park attended by women wearing the burka, an open-air presentation of a commedia dell’arte play, or a group of three people wearing medical or rehabilitative masks. The by-law requires any of these people to prove a “reasonable motive” to justify being “masked.”

 

Justification in a Free and Democratic Society

 

We are convinced that section 3.2 of By-law P-6’s violation of fundamental rights cannot be justified in a free and democratic society.

 

The provision’s objective, if we rely on the city council special assembly debates leading to its enactment, is to prevent vandalism. But the Criminal Code already confers extensive powers to deal not only with that problem, but also with the arrest of any masked person with criminal intent, or indeed, any person, masked or not, engaging in illegal acts during a demonstration. Notable examples include:

 

• – section 31, which allows a peace officer to arrest a person, upon reasonable grounds, “he believes is about to join in” a breach of the peace;
• – section 66, on unlawful assemblies;
• – section 175, on causing a disturbance;
• – section 351(2), on wearing a mask with the intent to commit a criminal act; and
• – section 430, on mischief.

 

Where section 315(2) of the Criminal Code differs from section 3.2 of the by-law is that P-6 allows the arrest of a masked person even absent any criminal intent; this is specifically what the Service de Police de Montréal (SPVM) sought to secure at city council when the provision was adopted. Alain Cardinal, a lawyer for the police, made this clear during the debate on P-6:

 

^{The Criminal Code provides—and those of you who studied law know this—that both a mens rea and an actus reus are required. The mens rea is the criminal act in a guilty intention, and the police service are currently having difficulty proving that a masked person has a guilty intention. In this case, the offence we’re creating will be strict: wearing a mask is prohibited. That’s what the proposed changes before you in section 3.2 say. So it allows police to intervene immediately, since the mere fact of wearing a mask is already an offence.[10]}

The quote from the SPVM’s lawyer demonstrates the sweeping extent of the prohibition. As soon as a person wears a mask outdoors in the context of a meeting of three or more people, police can act. The burden of proof is then reversed and it falls on the person wearing the mask or disguise to show that they had a “reasonable motive.” The challenge doesn’t appear to be easy. When someone charged under the by-law argues their motive was reasonable, they’re forced to prove it according to the potentially broad and extremely unclear language set out in the provision. Given that court proceedings are public, the accused person will have to give up both her identity as well as the reason she chose to remain anonymous. The effect is inevitably that her right is lost irrespective of whether she ultimately wins her case and of whether the charge is ultimately dismissed.

 

Adding to P-6’s defects is the fact that this type of provision, which makes an offence of the mere fact of wearing a mask, has already been held to have no legal force by the Superior Court as an unjustified infringement of free expression.[11] In 2005, the Superior Court effectively upheld a Municipal Court decision which found found that a provision in a 140-year-old Quebec City by-law prohibiting wearing masks in the street had no legal force. The Superior Court judge’s reasons on police discretion as a potential safeguard for an overbroad law are equally relevant to P-6:

 

^{Citizens have the right to know what behaviour is allowed or prohibited, and there can be no question in a free and democratic society of leaving the decision of what is acceptable and what is not to the determination of police. The discretionary power of those tasked with the application of the laws and regulations must be limited and circumscribed by clear and explicit legislative norms, which is an imperative of the rule of law.}

 

^{To adopt the position of the appellant, and to declare that section 5 of the by-law applies to the respondent, is tantamount to confering on police a level of discretion that would lead them to conclude that, as William Shakespeare noted in Hamlet: « there is nothing either good or bad [in itself], but thinking makes it so ».[12]}

 

For that reason, the Superior Court struck down the anti-mask provision in the Quebec City by-law. This makes it all the more suprising that the city of Montreal enacted such a similar provision, given its inconsistency with the Charters.

 

We believe this makes it clear that the section 3.2 is unjustified in a free and democratic society because it punishes wearing a mask itself without requiring any intent to commit a violent act or mischief. On the contrary, participation in an assembly, parade, or gathering is protected expressive activity. We repeat: if the police have reason to believe that a person is masked with the intention of committing a crime, they already have ample tools to intervene. Blanket prohibition on the exercise of a fundamental right, as formulated, is unjustifiable in a society which aspires to be free and democratic.

 

For these reasons we call on provincial and civic elected officials, once again, to promptly act to protect their fellow citizens’ fundamental rights. We call on them to act justly and coherently. Not long ago elected politicians affiliated with Projet Montréal and Vision Montréal opposed the adoption of sections 2.1 and 3.2 of By-law P-6. Representatives of both parties are now seated on the Executive Council. It’s time to act to repeal these “liberticidal” provisions (to use the language of the current Minister responsible for the Montreal region). We extend the same call to elected officials in Quebec City, to repeal the provisions of the By-law on peace and order which require demonstrators to provide their routes.

 

Finally, we demand, once again, a public inquiry into recent police action. Each day that passes without it erodes our fundamental rights and liberties.

 

Olivier Roy, criminal lawyer

Sibel Ataogul, labour lawyer and president of the Association of Progressive Jurists

Finn Makela, lawyer, law professor and Director of the common law and transnational law programs at the University of Sherbrooke

 

This text signed by the authors above as well as in the name of the Association of Progressive Jurists