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Masked protesters take part in an anti-capitalist demonstration in Montreal, Tuesday, May 1, 2012. Conservative MPs have agreed to impose a maximum 10-year prison term on protesters who wear masks while inciting a riot, and lesser sentences and fines for the mere act of being present at a riot in a mask. (CP)
Masked protesters take part in an anti-capitalist demonstration in Montreal, Tuesday, May 1, 2012. Conservative MPs have agreed to impose a maximum 10-year prison term on protesters who wear masks while inciting a riot, and lesser sentences and fines for the mere act of being present at a riot in a mask. (CP)

Globe Editorial: First Take

Ottawa’s new law banning masks goes too far Add to ...

The Harper government Wednesday used its majority to adopt Bill C-309, a private member’s bill that would make it a crime to be present at a riot or unlawful gathering while wearing a mask or other disguise to conceal one’s identity.

Now awaiting Senate approval, the bill – which would also make it a crime to incite a riot while wearing a disguise – is an understandable reaction to the frustration of seeing masked criminals looting stores and destroying cars during the Stanley Cup riot in Vancouver, or to watching pseudo-anarchists in black balaclavas systematically smash the windows of banks and coffee shops during the G20 riots in Toronto.

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But as a response to our outrage, it is problematic. By targeting a small group of troublemakers – whose problems go far beyond wearing masks – Bill C-309 unfairly paints a much larger group with the same brush and creates the potential for abuse.

Canadians have the right to demonstrate peacefully and, while doing so, to wear a bandana over their mouths, or dark glasses and a hat, or even a gas mask or a Stephen Harper mask. In winter, a heavy scarf or balaclava is not a disguise but a necessity. But what would happen during a legal protest involving hundreds or thousands of people if a few started scuffling with the police and isolated rioting occurred? The police could arbitrarily declare the legal protest to suddenly be an unlawful gathering and, under Bill C-309, immediately arrest every person wearing something that covers his face. Those arrested could be charged with an indictable offence that comes with a six-month jail sentence or a $5,000 fine. How would police differentiate between a legitimate troublemaker in a mask and an innocent person swept up in events? In the heat of the moment, would they even bother to try?

This is an odd sort of profiling. It would give police too much leeway to arrest innocent demonstrators. It is already a criminal offence to wear a disguise in the commission of a crime, but a crime has to have occurred for that law to come into play. That is how it should be.

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