Roger writing the LAWmag

Vancouver Riots: New Life to Old Law

In the wake of the ice hockey finals of 2011, in which the Boston Bruins beat the Vancouver Canucks in Vancouver to take the league championships, Vancouver suffered the worst riot in its history, with hundreds looting and damaging property.

It had no political meaning to it. It was just alcohol, drugs and disappointment in a sporting result.

But the reputation of the City, so well represented by flawless Olympic Games just months earlier, was now seriously compromised by hooliganism.

Luckily, the criminal law in Canada prohibits riots.

Crime: June; Charges Laid: December

Unluckily, the problem occurred in the jurisdiction of the Vancouver Police who took months and months to lay charges. They reminded one of the keystone cops of old, or the Oak Bay Police who in 2008, refused to enter a home with children from which distress calls had come, for several hours because of fear of gas leak (see Police: Would that be Cowardice or Stupidity?).

They do have a website even as late as January 4, 2012 (https://vancouver.ca/police/riot2011/) asking for help in identifying some eleven pages of photographs of suspects, some fuzzy, some not. Some look like drug pushers or lifers but many look like the kid next door.

Vancouver rioterFinally, as they trickle out of the Crown counsel office, here they are, criminal charges for rioting, a rarely used, and ancient section of the Criminal Code.

The offence of rioting is ancient indeed, as it comes to Canada through the ages and the pages of old English law; literally from the age of kings. The law defining and prohibiting unlawful assembly, to nip in the bud any assembly of evil-disposed persons, came about in the time of Henry VII (reigned 1485-1509) .1

Henry VII was no fool: it's hard to start a revolution if you can't even host an unlawful assembly, much less a riot.

There used to be a delightful requirement that the local sheriff attend the venue of the unlawful assembly or riot and:

"... in a loud voice to make a proclamation in these words: 'Our Sovereign Lady the Queen charges and commands all persons being assembled immediately to disperse and peacefully to depart to their habitations or to their lawful business, upon pain of being guilty of an offence on conviction of which they may be sentenced to imprisonment for life.'"

The rioters then had thirty minutes from the proclamation to disperse, failing which the sheriff could deputize twelve citizens who could use lethal force to round up the rioters. These deputies were not encouraged to be polite, patient or careful: they were immune from liability "against all proceedings of every kind in respect thereof".

A riot is an unlawful assembly gone wild. An unlawful assembly is not necessarily a riot.

In January 2012, the wording of the law in Canada is virtually the same as that used 120 years ago, in the very first edition of the Criminal Code of Canada:

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

"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..

"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."

An old 1993 case will be dusted off, R v Brien, in which Justice de Weerdt of the Northwest Territories Supreme Court proposed that the mens rea of riot is twofold, that there is an objective part and a subjective component:

"By objective mens rea I mean simply that a reasonable person, in the circumstances, not being in any relevant sense incapacitated from comprehending those circumstances, will recognize the unlawful character of the assembly .... By subjective mens rea, I mean that the accused person charged ... did in fact recognize the actual nature of the assembly (as unlawful)."

Vancouver rioterThis will be a challenge for the Vancouver rioters. Video footage leaves little doubt that those present must of known there was a riot afoot. Subjective, objective, vindictive, invective ... call it what you will, there's nary a brand of mens rea not available to convict most of the rioters, if they can be identified.

And that's the catch: identification.

To resolve this, the Vancouver riot cases may pit old versus new as a cutting edge evidence technique will likely be introduced and challenged: facial mapping. Some of the suspects may not be clearly identified on grainy video footage. Hence, recourse may be had to facial mapping experts.

Facial mapping suffers from the birthing pains all expert evidence encounters when first introduced to law: a lack of cohesive international and professional standards and recognition.

The Bible in Canadian criminal law when it comes to the admissibility of expert evidence is a 1994 Supreme Court of Canada decision, R. v Mohan, written by the late John Sopinka:

"Admission of expert evidence depends on the application of the following criteria: relevance; necessity in assisting the trier of fact; the absence of any exclusionary rule (and) a properly qualified expert. "

Where an expert can be qualified in the area of facial mapping and where there is a dearth of evidence on the identification of an accused, it would seem that facial mapping might well end up bringing many of the Vancouver rioters to justice, killing their hopes that the grainy store videos are inconclusive as to their identity.

On the menu at a Vancouver Courtroom in 2012, a cornucopia of delicious legal issues, a mix of ancient law with new.

REFERENCES:

  • R. v. Mohan, [1994] 2 SCR 9
  • R v Brien, 86 CCC (3d) 550 (1993)
  • Tashereau, Henri Elzear, The Criminal Code of the Dominion of Canada as Amended in 1893 (Toronto: Carswell Co. Law Publishers, 1893), page 51 [NOTE 1]

NOTE: These very issues were put to law students across Canada as part of the 2012 Law Games Moot Court Competition hosted by the University of British Columbia Law School from January 3-5, 2012, and for which I had the pleasure of acting as judge, and which inspired this article.

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