Madam Speaker, I wish to speak to the fifth report of the Standing Committee on Justice and Human Rights in relation to proposed Bill C-242, An Act to amend the Criminal Code (inflicting torture).
Bill C-242 proposes the enactment of a new criminal offence of non-state or private torture. Let me begin by commending the member from London North Centre for raising the important issue of non-state torture before the House of Commons.
I recognize that Bill C-242 seeks to address a particularly horrific subset of criminal conduct, which is worthy of our attention as parliamentarians. That being said, the committee has recommended that the House not proceed further with the bill. The committee's fifth report was presented to the House on October 17, 2016.
I agree with the decision not to proceed further with this bill. Let me provide some more details on why I believe that this was the appropriate decision to make. Private member's bill, Bill C-242 proposes to create a crime of inflicting torture for the purpose of coercing or intimidating any person, with a maximum punishment of life imprisonment. It would define torture to mean “any act or omission by which severe and prolonged pain or suffering, whether physical or mental, is intentionally and repeatedly inflicted on a person.” In addition, “severe and prolonged mental pain or suffering” is defined to mean suffering “a mental injury leading to a visibly evident and significant change in intellectual capability.”
The key point about this proposed offence was that it applied to anyone who committed torture, not just to officials of the state. The committee's report concludes that this approach may be redundant. This conclusion reflects the reality that there are already several offences in the Criminal Code that address inflicting serious harm on a person. For example, there is the offence of assault causing bodily harm in section 267 of the Criminal Code, with a maximum punishment of 10 years imprisonment. There is also the offence of aggravated assault in section 268 where a person wounds, maims, disfigures, or endangers the life of the victim. The maximum punishment is 14 years imprisonment.
There is the offence of sexual assault causing bodily harm in section 272 that has a maximum punishment of 14 years imprisonment. Finally, there is the offence of aggravated sexual assault in section 273, which addresses the situation where someone who commits a sexual assault wounds, maims, disfigures or endangers the life of the victim. The maximum punishment for this offence is life imprisonment.
As a result, cases of private torture can already be prosecuted under the Criminal Code under various assault provisions. An offence of private torture, as Bill C-242 proposes, appears not to be necessary. The standing committee's report also concluded judges already have the authority under section 718.2 of the Criminal Code to consider torturous conduct.
Section 718.2 is the sentencing provision in the code that sets out various aggravating factors that a judge must consider when determining the appropriate sentence for an accused person who has been found guilty of a crime. In particular, it is an aggravating factor whenever the victim of abuse is the offender's spouse or common-law partner. It is also an aggravating factor where there is evidence that the offence has had a significant impact on the victim. This will be particularly relevant where a victim has endured ongoing and horrific abuse.
Most importantly, section 718.2 instructs judges to consider "any relevant aggravating or mitigating circumstances relating to the offence or the offender.” Given such broad and comprehensive language, I have absolutely no doubt that the type of conduct addressed by Bill C-242 is already met with severe punishment. The approach to sentencing established in section 718.2 is critical, because it preserves judicial discretion to consider all the facts before them. Rather than creating a new offence to address every scenario, the code allows each unique set of facts to be accounted for at sentencing, and this is exactly what judges do in practice.
In addition to the redundancy with existing Criminal Code provisions, Bill C-242 also overlaps with another offence, namely, the existing offence of torture found in section 269.1 of the code. Although potential overlap is not always a problem, in this case it does appear to be.
Section 269.1 sets out a definition of torture that incorporates the internationally agreed upon definition of torture found in the torture convention. That definition contemplates torture committed by an official or committed by another person at the instigation of, with the consent of, or with the acquiescence of such an official. Thus, it does not capture torture committed by private citizens. The definition proposed in Bill C-242 is substantially different. It is both broader and narrower than the existing Criminal Code definition.
Torture is defined in subsection 269.1(2) of the code to mean any act or omission by which “severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” for various purposes, such as obtaining information from a person. Under this definition, in contrast to Bill C-242, there is no need for the pain or suffering to be prolonged or repeatedly inflicted or that the mental suffering lead to a visibly evident and significant change in intellectual capability.
In addition, section 269.1 of the Criminal Code has a maximum penalty of 14 years in prison, compared to the maximum penalty of life imprisonment proposed by Bill C-242. In creating the offence of torture in section 269.1, Parliament gave that section exclusive jurisdiction to address torture. Unfortunately, it does not appear that the proposed offence would complement Parliament's original intent. Such discrepancies with the existing definition of torture, as well as the existing penalty, may in fact undercut the established law set out in the Criminal Code.
Finally, there are a number of practical challenges with the bill that were raised at committee. For instance, the definition of torture proposes to introduce new and uncertain language into the code, including the words “change in intellectual capability'“. There is an open question as to whether PTSD or similar disorders would qualify under this definition, and it would likely take years of litigation to sort that out. It is also worth noting that none of the amended definitions proposed at committee appeared to adequately address the ambiguities raised by experts.
The introduction of uncertainty and inconsistency into the Criminal Code can result in a loss of confidence in the administration of justice. It is, therefore, our duty as parliamentarians to carefully consider all the implications of any proposed amendment.
The horrific forms of violence contemplated by Bill C-242 have no place in our society. That is why the concerns raised in this bill will be part of the discussion as the Minister of Justice undertakes a comprehensive review of the criminal justice system.
I wish to thank the members of the justice committee for their diligent work in reviewing this private member's bill.