Recently, Conservative MP Blake Richards introduced Bill C-309 to the floor in Parliament, proposing a 5-year jail term for wearing a mask or disguise while taking part in a riot, amending Section 65 of the Criminal Code of Canada. The thing is, there’s already a law on the books that makes it illegal to wear a mask or disguise while committing an indictable crime in Canada, so it’s not at all clear what this proposed amendment would accomplish in real terms. Before going on to the meat of the matter, it should also be pointed out that as it stands (and as Bill C-309 leaves unamended), Section 65 indicates a penalty of not more than 2 years for those found guilty of taking part in a riot , so what this bill would do is crank up the penalty from as low as under 2 years to potentially as much as 17 years if prosecutors decide to charge someone with breaking Section 65, the proposed Section 65(2) and the already existing ten year penalty provided under Section 351(2) (“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.)

While I would certainly approve of a stiffer for those who would instigate or participate in a riot, I’m baffled to come up with a reason to explain why wearing a mask could be seen as an offence 7.5 times worse than creating a public menace that endangers citizens’ lives and property. By all means, throw the book at people who take losing a hockey game as an excuse to loot and destroy a metropolitan area, I’ll gladly pay taxes to punish people who think burning down a local barber shop will send a message to the corporate fat cats in their ivory towers, but I do need someone to explain to me what wearing a mask accomplishes that is several times more destructive than actual, physical destruction.

I’m just throwing out ideas here, so bear with me, but could it be that there’s something more to it than what Mr. Richards is telling us? His publicly stated reasoning is that his bill will make it easier for law enforcement officials to track down and prosecute rioters, but I don’t see how this can be the case. If rioters and criminals are not deterred from wearing masks or disguises by the already existing ten year penalty, why should we think another five would stop them? Or even worse, if the rioters have a lawyer who is even moderately competent and could have the ten years from Sec. 352(2) thrown out in place of the proposed five, he’s effectively slashed their punishment in half! The best case scenario for Richards’ bill is that it will have negligible effect on rioter behavior vis-à-vis disguise wearing, and could stand a chance of gutting the existing penalty, so the question must be asked: Does he not realize what a bad law this would be for achieving his stated purpose, or is his stated purpose different from his actual one?

On the one hand, it could simply be short-sightedness on Mr. Richard’s and the Harper government now backing his bill. It may be that they just don’t understand that they are potentially going to accomplish the exact opposite of what they intend to do with this bill. I’m certainly open to the idea that Conservative leaders have missed some of the details here under the dictum of “Never ascribe to malice that which is adequately explained by incompetence.” Bigger mistakes have been made by far more clever governments, and it is entirely possible that our hapless Tories have simply overlooked what appears obvious to those of us who took the time to look at the actual bill and existing criminal code.

On the other hand, we have supporters of the bill like Toronto Star columnist, Peter Worthington saying, “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.” In this point of view, simply concealing your identity, the act of putting on a mask while taking part in a public demonstration is proof enough of criminal intent, and grounds enough for an arrest. He goes on to compare masks to loaded firearms, and why would you carry a gun, if not intent on using it, right? I found this idea intriguing, and managed to ignore the links to sex tapes, fatal flatulence and a scantly-clad Sunshine Girl long enough to give it some thought. Is there really something to this notion? Is Worthington correct to claim that someone who puts a handkerchief over her face in an attempt to mitigate the effects of pepper spray, or a young professional prudently keeping his face off the front page of his local paper on a moral par with someone carrying around a loaded gun? Is that handkerchieffed hippie or that yuppie Guy Fawkes the ethical equivalent of a potentially violent gunman?

No, that’s horse shit. Don’t be stupid. And quit looking at those smutty pictures of Gretzky’s daughter, show her father some respect.

The current law’s fatal flaw to Conservative eyes is that it carries an established burden of proof, that law enforcement officials must demonstrate that someone wearing a mask actually intended to take part in a criminal act, and this is not easy or simple to do. You have to do real police work, you have to collect actual evidence and build a credible case that will stand up to scrutiny at trial, and that is simply too much to ask of our poor police. That kind of work takes man-hours and budget dollars our police forces are too tied up spending on riot gear free of identification and reflective or smoked face-shields to protect the anonymity of those same poor police officers tasked with imposing order on the disorderly mobs that want to speak their minds in public against government policy or corporate over-reaching into our lives. This onerous requirement of actually providing proof that someone was wearing a gas mask to disguise their identity rather than protect their asthmatic respiratory system from chemical irritants deployed against peacefully assembled civilians is simply too much to ask.

This is what Harper and the Tories have found to be worth supporting in this back-bencher’s bill, it offers them the ability to criminalize dissent in a new and exciting way. Want to protest against our participation in foreign wars that have nothing to do with our national interests? That’s fine, but we’re going to take pictures of you, and start a file on you, and maybe send that file or even just rumours of that file’s existence along to your current and potential employers. Want to make a public stand supporting minority rights? Good for you, but if you choose to do so by donning so much as a piece of duct tape over your mouth, it’s going to mean up to ten years in jail if we announce that we’ve decided you’re taking part in an unlawful assembly.

Think I’m exaggerating? Hey, I could be wrong, Harper could really think he’s protecting Canadians by backing a bill that punishes wearing masks but doesn’t address the issue of actually starting and/or participating in a riot. He really could be that stupid, and maybe I’d sleep a little better at night if that were true.