Is it a criminal offence or is it a right to wear a mask or disguise at a protest in Canada?

Palestinian Protestor masked eaton centerSince the terrorist attack on Israel on October 7, 2023 led by Hamas (a “terrorist organization” as defined by the Government of Canada), we have witnesses wide-spread protests throughout Canada. While some of these protests may be peaceful and advocating for an ending of violence in the region, many have turned violent. where protestors menace businesses, cause vandalism expressed with the violence of hate crimes, and criminal acts of violence including death threats. Making matters worse, these incidents are happening at locations where peaceful citizens and their children are out preparing for the upcoming holiday season.

In nearly every instance of media coverage of the protests, some protestors cover their faces  no apparent reason other than to avoid social recognition and/or frustrate the efforts of law enforcement.

Many Canadians are therefore wondering:

“Is t is legal to wear a disguise in public while engaging in a protest?”

While anything analyzed from a legal perspective is complicated, the answer in simplest terms is: when a protest crosses the line into being unlawful, or a person is committing criminal acts, it is a criminal offence(s) under the Criminal Code of Canada to wear a mask or disguise. 

When considering Pro-Palestine protests, the application of these laws requires a detailed, case-by-case analysis based on specific facts. In some situations, the legality of wearing a mask or disguise may be debatable; in others, it is quite clear. However, what remains perplexing is the apparent inaction of police and government authorities in enforcing Canadian laws, particularly in instances where criminal activities are evident. This lack of enforcement is a key factor in allowing protests to escalate into uncontrollable, violent mobs, a scenario that has become all too common in recent months.

The law on wearing masks or disguises in public in Canada, simplified.

To simplify some key points of law (expanded on below):

  • Engaging in a peaceful protest is not a criminal offence.
  • Wearing a mask or disguise is not a criminal offence.
  • Wearing a mask or disguise at a peaceful protest is not a criminal offence.
  • KEY: A protest becomes unlawful when the conduct of protestors intentionally causes reasonable fear by creating a tumultuous disruption of peace, or incites others to do so. Once a protest becomes unlawful, it then becomes a criminal offence to wear a disguise or mask while participating.
  • Independently, it is always a separate and distinct criminal offence to wear a mask while committing another violent criminal offence (such as assault, threats, robbery, etc.).

Heather Reisman targeted The exact wording the Criminal Code of Canada is as follows:

63 (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

(2) Persons who are lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in a manner that would have made the assembly unlawful if they had assembled in that manner for that purpose.

64 A riot is an unlawful assembly that has begun to disturb the peace tumultuously.

(1)Every person who takes part in a riot is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or

(b) an offence punishable on summary conviction.

(2) Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

            …

351(2) Every person who, with intent to commit an indictable offence, has their face masked or coloured or is otherwise disguised is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

A brief history of when the law changed and masks became illegal at unlawful assemblies and riots.

Until June 2013, Canadian law did not specifically prohibit wearing masks or disguises during protests. Around this time, law enforcement agencies expressed concerns about their ability to enforce laws during riots, as masked protestors made identification extremely challenging. This was evident at the 2011 Stanley Cup riot in Vancouver, the G20 protestor clash in Toronto in 2010.

In response to growing concerns, the ‘Preventing Persons from Concealing Their Identity during Riots and Unlawful Assemblies Act‘ was introduced by the Honourable Peter Van Loan, Leader of the Government in the House of Commons for the Conservative Party, in October 2011. This legislation enhanced the Criminal Code of Canada, particularly targeting individuals involved in unlawful assemblies while concealing their identity with a mask or other disguise. As noted earlier, offenders could face up to 10 years in prison for such acts. The law was granted Royal Assent and came into effect in June 2013, during Trudeau’s Liberal government

Blake Richards (Wild Rose, CPC) outlined the purpose of the bill that,

“This legislation would add new penalties for wearing a disguise to those sections of the Criminal Code that deal with individuals who participate in a riot or an unlawful assembly. This bill is a measured response to a problem that law enforcement officials have grappled with for years, and the need for which has been further highlighted by recent events in the cities of Toronto and Vancouver.” 

Words spoken by Mr. Richards, in the House of Commons, read as apropos as they did when the bill was first introduced:

“According to police, some of the perpetrators deliberately masked up prior to the gatherings becoming violent, while others mingled in the crowd and covered their faces in order to carry out criminal acts of opportunity…

“… criminals are well aware in this age of social media and all-pervasive cellphone cameras that they run a very high risk of their behaviour being recorded and they had better hide their identity if they want to avoid being caught and brought to justice for their actions. More and more of them are doing exactly that. In too many cases, these offenders escape identification by covering or obscuring their face at the time of the offence. This is an unacceptable state of affairs. No one should be able to commit violent and destructive crimes against persons and property with impunity under a cloak of anonymity…”

… Police have long advised that their inability to pre-emptively deal with individuals who were concealing their identities in the middle of such explosive situations is hindering their ability to maintain control and to protect the public. Currently, there is no authority for police to pre-emptively stop people from concealing their identity in a riot. They must observe an offence before they can move to stop it, even by a masked individual and even in a riot. Their powers in these dangerous situations are reactive rather than proactive.

On October 31, 2012, the bill completed its final reading in the House of Commons. The voting outcomes were as follows: Conservatives overwhelmingly supported it with 151 votes for and none against; Liberals were predominantly opposed with only 2 in favour and 27 against; the NDP unanimously voted against it with 27 votes; and the Bloc, Independents, and Green Party members collectively had 4 votes against the bill.

Ok, so the law stands and it’s illegal to wear a mask/disguise during an unlawful assembly or committing a criminal act. Why aren’t police enforcing it?

In 2023, amidst frequent protests that often involve criminal activities, one might wonder why these offences are not being rigorously prosecuted and penalized. The reluctance of the current coalition government, formed by the Liberals and NDP, to enforce this law might shed some light on their lack of motivation.

Despite facing opposition, this reform has become an integral part of Canadian law. It is now incumbent upon both provincial and federal governments to enforce this law, particularly against the criminal actions increasingly seen among violent protestors. These protestors not only instill fear and commit crimes, but also propagate hate, notably anti-semitism, without facing consequences. Their use of masks to conceal identities further prevents the public from identifying those responsible for such acts.

The failure of law enforcement to take action will only further embolden protestors. If left unchecked and unenforced, it could become widely known that wearing a mask at protests is an easy way to evade accountability for crimes, including hate and violence. To combat this growing trend of cowardice, disorder, and violence, we need a firm commitment to enforcing our laws and maintaining order.