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Who Was That Masked Man? And What Happened To His Rights?

06/20/2013 05:12 EDT | Updated 08/20/2013 05:12 EDT

Yesterday it became a criminal offense for Canadians to wear a mask during a riot or unlawful assembly. Anyone who violates the new law, which also prohibits otherwise concealing one's identity during such gatherings, will face a penalty of up to a 10-year prison sentence.

It's ironic that the law is said to have been motivated in part by the G20 riots in Toronto -- where the individuals most concerned with going incognito seemed to be the police. My compliments to any crown attorney who chooses to prosecute this new crime with as much zeal when it is committed by law enforcement officials as when it is committed by idiots who have seen V for Vendetta one too many times. There, however, is where my compliments end. Because this law is an unnecessary overreaching into our right to demonstrate and assemble freely, speak our minds, and maintain basic privacy.

It of course makes perfect sense to punish people for any violence, vandalism, or theft they commit during a riot. But we already do that. And we also already have an older law on the books that forbids wearing a disguise during the commission of a crime. So really, we had this territory covered.

The problem with the new law is that it threatens to chill the political and social activities of completely innocent people -- or to land them in jail for doing nothing more serious than trying to stay anonymous. What if someone working in the public service wanted to attend a protest of current government policies, but planned to wear a kerchief on his face because he did not want his image captured in photos or video for fear of reprisals at work? Or if a particularly creative environmentalist wanted to make a point at an anti-oil sands demonstration by wearing a handmade sludge-covered duck mask? Or if a woman seeking an abortion wanted to hide behind an open umbrella as she made her way through anti-abortion protesters into a clinic. All three of these individuals would be risking serious jail time. All that would have to happen would be for police to declare the respective events unlawful assemblies, and the kerchiefed bureaucrat, artsy activist, and privacy-seeking pregnant woman could all be put behind bars. Kind of takes the steam out of social protest movements -- good, bad, or otherwise -- doesn't it?

Can the government really get away with this level of intimidation, dampening, and punishment of public demonstrations -- not to mention extending its reach even to someone like the pregnant woman, who has no choice but to pass through a protest to get to where she's going but is still denied the option of anonymity? Not if the Charter's protections of freedom of expression and peaceful assembly mean anything. Which is why I hope the new law will be challenged in court -- and soon. It deserves more serious constitutional scrutiny than it has been afforded, and it deserves more outrage too. Canada should not feel comfortable joining the ranks of Bahrain, the United Arab Emirates, and Saudi Arabia -- countries (none of them exactly known for their respect of civil liberties) that have, as Dana Stuster points out over at Foreign Policy, recently banned Guy Fawkes masks.

This kind of broad criminalization of innocent behaviour as a means of trying to prevent future crimes, rather than policing specific criminal acts -- a sort of prophylactic catchall -- is the lazy, authoritarian solution to civil unrest. It may be an efficient means of cutting down on rioting (though, really, what percentage of rioters have the forethought to actually bring disguises?); but it's far more efficient at making people afraid to speak out or demonstrate against current policies, rules, or ideas. Canada is better than that. Or should be.

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