Mask-wearing law likely to face court challenge

OTTAWA — A new change to the Criminal Code that makes it illegal to wear a mask at a protest or riot is likely to be challenged in the courts as limiting freedom of expression, experts say.

The clause makes it a crime for a person to attend an unlawful protest “while wearing a mask or other disguise to conceal their identity without lawful excuse.”

Supporters say it is one more tool to help the police maintain order, while civil liberties advocates say it tramples constitutional freedoms.

“It’s outrageous, there’s all kinds of legitimate reasons to mask your face in terms of a protest,” said Micheal Vonn, policy director with the B.C. Civil Liberties Association.

The bill, which just passed the Senate and awaits royal assent, is similar to a bylaw in Montreal that restricts mask-wearing during protests. A challenge to the constitutionality of that bylaw is before Quebec’s Superior Court.

Sponsored by Alberta Tory Blake Richards, the federal bill was introduced to Parliament in the wake of the G20 protests in Toronto in 2010 and the Vancouver riots following the Stanley Cup playoffs in 2011. Police have complained that masks make it difficult to identify those breaking the law.

While the Montreal bylaw affected only protests in that city, Bill C-309 alters the Criminal Code, which applies to all Canadians, and would allow police to pre-emptively arrest protesters if they wore facial coverings. A conviction could lead to up to 10 years in prison, under the terms of the bill.

However, critics say C-309 is likely going to end up in court.

Sen. Serge Joyal, a former lawyer who argued against the bill in the Senate, said the law restricts the constitutional right to freedom of expression. “The courts in the past have recognized that wearing a mask is a form of expression that is protected,” he said.