Like most on the Left I have no time for the Black Bloc and other masked and violent self-styled “anarchists,” and neither should you. But the anti-mask law just passed by the Harper government is dangerous overkill.
Many have pointed out the possible casualties of such a law—folks masking up in the wintertime, innocent protesters unaware of what is happening elsewhere in large crowds, and so on. We might also wonder whether the law would apply to the police agents provocateurs very much in evidence in Montebello (see photo above) and during the G20 protests.
In any case, the key objection to Bill C-309, another one of these private member’s bills that should ideally be charged for wearing masks themselves, is that it further criminalizes dissent in Canada.
How? Well, to do so, the law falls back upon a staple of the South African apartheid regime: the so-called “common purpose” doctrine (which, in fairness, had its roots in English common law, but was massively extended to crush anti-apartheid protest). Under that notion, if you are part of a large protesting crowd, and someone throws a rock through a window, you are held to be guilty of that same offence.
Readers will remember the shocking exercise of legal overreach in South Africa very recently: striking miners were gunned down by police, but it was the 270 surviving miners who were charged with murder. Despite the fact that the courts had restricted the application of the “common purpose” doctrine considerably in 2003 (Thebus and Another v S, see next link), the miners were charged en masse for having “incited” the police. A discussion of the legal and constitutional issues surrounding this appalling travesty may be found here.
After a huge outcry, the state wisely backed off.
But in Canada, the extended common purpose doctrine is gaining steam. A former student leader was convicted of contempt of court and faces jail because striking students disobeyed a court injunction against picketing. And the federal anti-mask law, if it passes the Senate and receives Royal Assent, will criminalize innocent people in a crowd for the actions of a very few.
In fact, there need be no riot declared. In Quebec, under the infamous Bill 78, police can declare an entire protest illegal pretty much any time they want. Under C-309, wearing a mask when that happens could mean automatically facing ten years in prison.
What we are seeing is a political version of the “one-drop” rule, or perhaps a three-drop one. It is already illegal, as everyone knows, for a disguise to be used during the commission of a crime. The new legislation spreads legal culpability far and wide, catching in its toils people who have actively committed no crime whatsoever. Its purpose seems very clear.
Consider the braying on the Right when an entirely legitimate protest attracts some unsavoury elements. It’s pretty hard to kick people off a street, as an old comrade once observed. But their presence is sufficient, in some people’s minds, or at least in their rhetoric, to colour the entire protest.
That foolish and dangerous concept has now been enshrined in law by the Harper government. And a splendid silence, once again, has descended from the usually noisy Speech Warriors,™ so assiduous in their defence of free expression for Canadian hatemongers.
ERRATUM: Reader Line Merrette correctly points out that Bill 78 (Law 12) was repealed a few weeks ago, shortly after Pauline Marois came to office. Perhaps I was misled by this story: in mid-October, a demonstration against the psychotic brutality of Const. Stephanie Trudeau, better known as Badge #728, was declared illegal by Montreal police on grounds that sounded very Bill 78-ish indeed.
If the police can continue to declare marches illegal, repeal or no repeal, then my general point still holds. But apologies to readers for a glaring inaccuracy.
