An Act to amend the Criminal Code (inflicting torture)

Sponsor

Peter Fragiskatos  Liberal

Introduced as a private member’s bill. (These don’t often become law.)

Status

Dead, as of Nov. 29, 2016

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-242.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to create the offence, for a private individual, of inflicting torture. It also amends other provisions of the Act as a consequence.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

November 29th, 2016 / 7:35 p.m.
See context

Charlottetown P.E.I.

Liberal

Sean Casey LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

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.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

November 29th, 2016 / 7:40 p.m.
See context

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Madam Speaker, I rise this evening to speak to the report of the Standing Committee on Justice and Human Rights with respect to Bill C-242, introduced by the hon. member for London North Centre. Bill C-242 seeks to establish a Criminal Code offence for torture in the non-state realm. Presently, the only Criminal Code offence for torture lies in section 269.1 of the Criminal Code, which deals with state torture.

At this time I would like to thank the hon. member for London North Centre for his hard work and his efforts to bring awareness to the important issue of non-state torture and for trying to do something about it by bringing forward Bill C-242.

At second reading debate, I spoke in favour of Bill C-242. I did so notwithstanding the fact that the evidence was clear from a review of the law that there is no clear gap in prosecuting and convicting individuals involved in torture offences. Those offences that cover torture include, among other things, aggravated assault, aggravated sexual assault, forcible confinement, kidnapping, and so on. Nonetheless, I supported Bill C-242 because I believed it was well-intentioned and because I take seriously the issue of torture.

In that regard, I believed it certainly merited moving to the next stage in the legislative process, namely to committee for further study and review. That study and review did take place by the justice committee, of which I am a member. Upon participating in that review, I now concur with the report of the justice committee, which is to not recommend that Bill C-242 move forward. It is not because the bill is not well-intentioned. I certainly acknowledge the fact that there is symbolic value to calling a torturer what a torturer is, and that is a “torturer”, but good intentions and symbolism do not always make good law.

In this case, I respectfully believe that Bill C-242 would not make good law. While my time is limited and I do not have sufficient time to go through all of the issues with the bill, I would like to highlight a couple of issues with the bill.

One of the issues with Bill C-242 is that it could complicate the prosecution of cases involving torture and could lead to inconsistent sentences for similar crimes. Take aggravated assault, for example. Under the Criminal Code, aggravated assault is defined as an offence involving wounding, maiming, disfiguring, or endangering the life of another human being.

There are all sorts of circumstances involving acts of torture that could easily fit into one or more of the categories of wounding, maiming, disfiguring, or endangering the life of another human being. Under the Criminal Code, the maximum penalty for aggravated assault is 14 years. Under Bill C-242, the maximum penalty for the proposed torture offence would be life imprisonment. Therefore, if Bill C-242 were passed, it could mean that someone who, for example, severely maimed an individual could be convicted of aggravated assault and sentenced to 14 years behind bars, whereas someone who committed a similar offence could be convicted under the torture offence and receive a sentence of life in prison.

That is just one example of an instance where it could be more difficult for the prosecutor to prosecute a case and where the outcome of similar cases could result in different sentences.

Additionally, there is inconsistency between the life sentence under Bill C-242 and the maximum 14-year sentence under section 269.1 of the Criminal Code, which deals with state torture. It therefore raises the possibility that if, for example, a police officer or member of the Canadian Armed Forces engaged in a crime involving torture, the prosecutor would be faced with the position of electing to proceed under the new offence under Bill C-242 or the existing offence under section 269.1 of the Criminal Code. If the prosecutor wanted to have the maximum sentence, he or she would likely proceed under the new section of Bill C-242.

The difficulty with that, if the prosecutor proceeded under the new offence rather than section 269.1 of the Criminal Code, is that it could then be argued that Canada would not be fulfilling its international obligations under the United Nations Convention Against Torture, which calls upon Canada to hold state officials accountable under international law codified by section 269.1 of the Criminal Code, and not the new section under Bill C-242.

The member for London North Centre had suggested at committee that perhaps the sentence be reduced from life down to 14 years. While that would marginally address issues of inconsistencies in sentencing for similar cases and similar crimes, it would not take away the complexities in prosecuting cases involving torture that would be created as a result of Bill C-242.

If one looks, for example, at aggravated assault, it is necessary when trying to establish intent that the crown prove that the accused intended to commit an assault. Under Bill C-242, it would not only be necessary to establish intent with respect to the torturous act, but it would also be necessary to establish intent in terms of the infliction of pain on the victim. Not only would it be necessary to establish that intent to inflict pain, and necessary to establish there was an intent to intimidate or coerce an individual, it would also be necessary to establish that the individual who had pain inflicted upon them suffered severe and prolonged pain.

On top of that, it would be necessary to establish not only that a torturous act was committed against an individual, but that the torturous act was committed repeatedly. Unfortunately, “repeatedly” is not defined under Bill C-242, and therefore would be subject to judicial interpretation, thereby creating uncertainty.

In closing, I will simply say that, while Bill C-242 was well-intentioned, it would create uncertainty in the Criminal Code. It would create further complexity in the prosecution of cases involving torture. It would raise legal and interpretative problems for the courts, and it arguably could undercut Canada's international obligations under the United Nations Convention Against Torture.

It is for these reasons that I regretfully must stand in opposition to Bill C-242.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

November 29th, 2016 / 7:50 p.m.
See context

NDP

Georgina Jolibois NDP Desnethé—Missinippi—Churchill River, SK

Madam Speaker, I am pleased to speak to this motion today.

First, I want to thank the member for London North Centre for his work on Bill C-242. He chose a very serious and important area of the Criminal Code for his private member's bill, and I want to thank him for giving our justice committee and the House an opportunity to debate what he proposed.

Bill C-242 would have created a new offence in the Criminal Code to apply the term “torture” to heinous acts of violence that are currently prosecuted under a range of sections, from aggravated assault, to forcible confinement, to uttering threats, and so on.

The member suggested, and some witnesses agreed, that it is important for victims, as they are processing their trauma and moving forward, that society accurately label what has occurred; in other words, that we call it “torture” and not “assault”.

Although the committee did not receive any evidence on this particular point, I personally think it is important and—as I will explain in a moment—it should not be lost from this discussion. The voices of victims should be included in conversations about the criminal justice system.

At the justice committee, a number of practical concerns were raised about the bill.

First, it was the clear recommendation of the Department of Justice that if a new and more severe assault offence were to be created, it should not be called “torture” alone. To be clear, its advice was not that such acts do not constitute torture, as we commonly understand it; nor was it opposed to labels such as “torturous assault”, which members from the NDP proposed as solutions. Rather, its concern was with using only the word “torture” and, thus, creating two offences called “torture”.

It was suggested that to do this could undermine international agreements and norms against state torture, because it may encourage states with poor human rights records to create new or weaker variations of their laws to prevent officials from carrying out torture.

As I said, we considered this advice from the department and proposed that the new offence be called “torturous assault” so as to avoid the risks it identified, while still capturing the severity and brutality of the conduct.

Second, the committee heard from a number of legal experts who argued that the bill could not criminalize any conduct that is not already criminal in Canada. In other words, the acts that would give rise to prosecution under the new offence would already give rise to prosecution under a number of existing offences: assault, sexual assault, kidnapping, forcible confinement, uttering threats, and others.

Again, to be clear. The bill would have changed the term that is applied and could, in some cases, also have increased the maximum punishment possible, but it would not make illegal any activity that is somehow currently legal.

It was because of these concerns—the practical risks raised by the Department of Justice and the question of necessity raised by legal experts—that the committee decided to not proceed with consideration of the bill at that time.

However, at that time, we raised some concerns about some language that was used in the discussion of the motion. I think it is very important to repeat here what we raised then. It was suggested by some members that Bill C-242 was wholly redundant. We, in the NPD, disagree with that characterization. The concerns that expert witnesses raised at committee were heard. They supported the decision to not proceed with the bill. However, they did not support the claim that Bill C-242 is redundant.

Let me explain.

First, existing assault provisions do not require that the offender intend to cause pain and suffering. They only require that the assault is intentional and that the offender was reckless as to its consequences.

Therefore, creating a new and more severe offence that captures the deliberate infliction of pain and suffering would be a meaningful change to the Criminal Code. It would be harder to prove, of course, but it would also more accurately capture the brutal acts that occur in these cases.

Second, the argument about the importance of naming acts that was made by the member for London North Centre, and by some witnesses at this committee, should not be rejected. That is why we tried to salvage the bill by proposing “torturous assault” as a compromise.

Unfortunately, the justice committee did not hear the evidence on what effect the name of an offence has on the recovery of the victim.

However, we can certainly see how victims and their families struggle to understand how a bar fight and days of sadistic abuse both fall under the label of assault.

Therefore, I urge the government to consider these two points in its review of the Criminal Code. First is whether a new and more serious assault offence should be created to capture the deliberate infliction of pain and suffering. Second is whether such an offence could be given a name such as “torturous assault” that would more accurately capture the brutality of the crime. When the government conducts that study, I would urge it to hear directly from victims and their families, as well as experts.

We worked hard with all parties to resolve the concerns about the bill. I know that all parties supported the intention of the bill. Again, I thank the member for London—North Centre for his work.

While those concerns could not be resolved this time, I think it would be a grave mistake to abandon the bill permanently or declare it redundant. It contains some new and important ideas that should and must be considered by the government during its promised review of the Criminal Code.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

November 29th, 2016 / 8 p.m.
See context

Liberal

Anthony Housefather Liberal Mount Royal, QC

Madam Speaker, as the chair of the Standing Committee on Justice and Human Rights, I want to say a couple of words on our fifth report and its recommendation to the House not to proceed further with Bill C-242.

I also want to thank my colleague, the member for London—North Centre, for bringing forward an idea that I think all parties had agreed had merit. I also want to thank the members of the committee who came to a unanimous conclusion after working together and listening to all of the testimony on the bill. There were no ideas that we did not discuss at committee, and all parties were involved.

I also want to thank the witnesses who appeared before our committee. We heard about true acts of torture. We heard about people who really suffered beyond anything any of us could ever imagine. To those people who were able to come forward and tell their stories, or those who came forward to tell stories on their behalf, I do want to thank them. Their work was not in vain. Their ideas were not lost.

While I believe the bill could have been amended to take into account certain things, I do not think the committee at all bought the idea that we could not have a second act of torture that was private, because there already was a public act of torture under section 269.1. We could easily have amended the name to call it a “torturous assault” or a “torturous act” and we would have all been fine with that, should there have been other justification for proceeding with the bill. We could have amended the idea that the punishment was life, as opposed to 14 years, as it is for public acts of torture, making it 14 years as well to be consistent with public acts of torture. Clearly, we would not want government sanctioned acts to carry a lower penalty than private acts.

However, the real reason we did not proceed was that all members of the committee were convinced that the criteria to prove this charge were so difficult that no prosecutor would ever use the charge, except as a duplicate or additional charge, because it was easier to prove existing offences in the Criminal Code that would have carried the same 14-year penalty. As a result, the committee determined that we should not further proceed, but we did agree to send a letter to the Minister of Justice, asking her to consider torturous acts in a private capacity, or torturous assault, as an aggravating factor for sentencing.

I am hoping that in its overall review of the Criminal Code, the government does consider and proceed with that recommendation of the committee.

Criminal CodePrivate Members' Business

April 21st, 2016 / 5:15 p.m.
See context

Liberal

Peter Fragiskatos Liberal London North Centre, ON

moved that Bill C-242, an act to amend the Criminal Code (inflicting torture), be read the second time and referred to a committee.

Madam Speaker, I stand today to formerly address my private member's bill, Bill C-242, an act to amend the Criminal Code (inflicting torture).

After being drawn ninth in the private members' bill lottery, I felt a responsibility to take advantage of this good fortune by putting forward a meaningful reform. I might have sought for a particular cause to be given special recognition or to have a forgotten historical event commemorated. Such initiatives certainly have their place, yet I felt the need to go in a different direction.

Bill C-242 is a human rights bill that aims to add a torture offence to the Canadian Criminal Code.

Article 5 of the United Nations Declaration of Human Rights states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

While a torture offence exists in section 269.1 of the Criminal Code, it only applies to acts perpetrated by state officials. Equivalent acts that would otherwise be defined as torture but committed by private individuals acting outside of state authority are instead typically considered to constitute the offence of aggravated assault under section 268. The proposed reform will pertain to those acts of brutality that may be life-threatening and far exceed instances of aggravated assault, a charge that can apply to serious and trivial acts of violence. Section 268 is therefore insufficient.

Torturers aim to rob individuals of their dignity through the intentional and repeated infliction of severe pain, suffering and humiliation over a prolonged period of time for the purpose of intimidation and coercion. These actions have no place in a free, open and democratic society such as Canada.

For critics, the current charges available in the Criminal Code have been said to be sufficient. They believe that existing laws can adequately be applied when torture offences take place. I have already mentioned aggravated assault. Other possibilities include assault, assault with a weapon or causing bodily harm, sexual assault offences, and aggravated sexual assault.

Judges indeed may have the ability to impose sentences that account for aggravating factors when the offence has had a particularly difficult impact on the victim. I understand this argument, but do not accept it. True, it does not deny that torture committed in the private realm can happen, yet it also implies the problem is exaggerated and that existing laws are good enough. Tell that to the victims of torture.

Existing offences are in place and can be used to prosecute perpetrators, I agree. However, they are inadequate because they do not acknowledge that torture has been endured, unspeakable acts, heinous acts, acts so terrible that everyone in the House would be left shaking their heads in absolute disgust. A gap in our Criminal Code therefore exists. Ignoring it does a disservice to the victims of torture.

I will only point to a few examples, and there are many others, that have occurred in recent years. The details while difficult are important.

In 2006, a Calgary man was made to take off his clothes and had his hands and feet tied with cables. He was then left to hang from ceiling joists while his torturers punched, cut and whipped him with a belt before spraying him with butane. This happened over a period of days. Two individuals were found responsible. The first was a youth who could not be sentenced in adult court. The second pleaded guilty to assault with a weapon, and a mere two years was given in what amounted to an example of torture.

In 2008, a Brampton man had his toe cut off, was beaten with a bat, cut multiple times with salt rubbed in his wounds, and had a plastic bag put over his head. This took place over several hours and seemed to have been done with the intent of obtaining information about a theft. The individual who carried out the action was found guilty of aggravated assault and forcible confinement and given a sentence of less than 10 years. The more appropriate choice would have been torture, because that is what took place. In fact, the judge used the word “torture” to describe the victim's experience.

In 2010, Dustin Paxton beat, starved, burned, and cut off the lip and part of the tongue of his victim in a well-known Alberta case. This seemed to have happened for perhaps as long as two years. While a dangerous offender designation was assigned by the courts, Paxton was charged with aggravated and sexual assault even though torture more properly captures what happened.

I have one final example. I received a call to my constituency office recently from a woman who told me that she lived through some of the most despicable actions that anyone could imagine. Her childhood was so terrible that she felt the need to flee to the United States, where she now lives. This was necessary in order to gain the sense of security that she so desperately needed. In repeated acts of torture, this young woman was tied up, hung upside down, and had objects, such as a cattle prod, used against her.

Though extremely hard to hear, the reality that our society requires a charge of torture to be put into the Criminal Code is evident from the cases I have described throughout.

The need to call crimes what they are is not simply an academic matter. In order for victims to heal, their suffering must be acknowledged. Indeed, this fact underlined the truth and reconciliation process on residential schools, and is a basic human rights principle.

Using terms such as “aggravated assault”, which can be applied to the above cases just as easily as it can be to a fist fight, does not adequately speak to the grave human rights abuses that have been committed.

This is why the bill proposes a sentence of up to life imprisonment for those who carry out torture. Some will criticize the bill on this basis because the existing state torture law only offers a maximum of 14 years. It is true that this is inconsistent and I believe strongly that a much stiffer sentence for acts of state torture is certainly warranted.

However, rather than aiming to do everything and, hence, nothing, I have placed my focus on a gap that has been almost completely disregarded by Canadian legislators until this point. I did so after consulting with victims, their families, justice department officials, and civil society organizations.

The legislation was drafted by expert bureaucrats trained in the law. I value the support they have provided and the passion they show for their work every day.

The same line of reasoning applies to the issue of aggravated assault. The maximum penalty for aggravated assault is 14 years. This is appropriate, I admit, for most violations. However, when torture more properly describes the offence, a much harsher penalty is warranted.

Furthermore, it is true that torture from an international legal perspective has traditionally been understood as a state crime. I respect this, but add that the definition of torture has shifted. The Committee Against Torture, for example, which is responsible for monitoring the UN torture convention of which Canada is a signatory, has said that torture in the private sphere qualifies as torture.

This view has been accepted by other states. The proposed legislation shares much in common with existing torture laws in Australia and France. Both countries, extremely important allies, have strong torture laws that apply to state and private actors. Canada should follow suit. Recognizing such a change would acknowledge the ordeal experienced by those who have suffered torture and punish torturers accordingly.

Cases of extreme violence and inhumane conduct have happened in Canada and could take place again. Canadians deserve a government that will stand up for their rights and safety at all times. Previous governments had an opportunity to make this change but failed to do. It is time to act and make positive change happen.

This is not perfect legislation, and I am not sure any piece of legislation is ever perfect. However, I want to assure all my colleagues in the House that I am open to any potential amendments that could be examined by the justice committee. This includes lowering the term of punishment and any other concerns that may exist. It would be a sincere shame to have this important bill defeated because of concerns related to technicalities which could easily be altered.

I ask my colleagues, before making a final decision, that they consider these important factors. If they believe that human rights matter, if they believe that torture has no place in our society because it robs individuals of their humanity and dignity, if they believe that the way to ensure public safety is not by building more jails or through the politics of division and fear but through enshrining human rights principles into the law, then I urge them to vote in favour of Bill C-242 for all of these reasons, and allow it to go to committee where it can be further examined.

This bill is not about me and has never been about me. Indeed, this is the most important point I want to make today. I dedicate this bill to all victims of torture. Their voice matters. I have listened to them. Their suffering cannot go unacknowledged any longer, and I will continue to fight for them.

Criminal CodePrivate Members' Business

April 21st, 2016 / 5:30 p.m.
See context

Conservative

Michael Cooper Conservative St. Albert—Edmonton, AB

Mr. Speaker, I want to commend the hon. member for London North Centre for introducing this well-intentioned piece of legislation. Bill C-242 seeks to establish a Criminal Code offence for acts of torture committed by non-state actors. As the hon. member for London North Centre pointed out, the only section of the Criminal Code that establishes a specific offence for torture is section 269.1, and section 269.1 only deals with acts committed by state actors.

At the outset it is important to acknowledge, as the hon. member did, that those who commit torturous acts for non-state actors are not given immunity in Canada. On the contrary, there are any number of Criminal Code offences that apply to torturous acts, depending on the nature and the scope of the act. Those sections include offences such as aggravated assault, attempted murder, kidnapping, and so on.

The offences that are presently on the books in the Criminal Code are long-established offences. They are well understood. There is a wide body of case law. Those convicted of any one of those offences may spend a very long time in jail. Take, for example, aggravated assault. Someone convicted of aggravated assault may spend 14 years in jail. In the most serious of cases, someone convicted may be designated a dangerous offender, rendering that individual ineligible for parole. Being designated as a dangerous offender is tantamount to being sentenced to life in prison.

That is precisely what happened in the case of the Calgary man to whom the hon. member alluded, who had committed horrendous acts of torture. I will not mention that man's name in the House because it is unworthy of being mentioned in the House or in any other public forum. The fact is that the man took someone for two years and confined, beat, burned, and starved that person. That heinous, despicable individual was charged and convicted and designated as a dangerous offender and will very likely spend the rest of his natural life behind bars, where he belongs.

I mention that simply to say that there are laws on the books at present; and in general, it is my observation that they are largely working. However, the hon. member for London North Centre says that the laws on the books just are not good enough and that torture is a specific crime worthy of a specific Criminal Code offence.

All decent Canadians find torture to be abominable. Torture is vile, inhumane, and evil. The victims of torture, those who suffer at the hands of their torturers, endure physical and emotional pain that is probably unimaginable. They live with that legacy likely for the rest of their lives. To be tortured is tantamount to a life sentence for victims.

When the hon. member for London North Centre says the current laws are not good enough, I take it that he has a point. We, as parliamentarians, have a duty to ensure that the laws on the books do justice by holding perpetrators of heinous crimes accountable and do justice for the victims so that they can begin the process of healing.

Therefore, it is on that basis that I believe that Bill C-242 deserves to go to the next step in the legislative process, to committee, for further review, further study, and further amendment. I want to thank the hon. member for London North Centre for acknowledging that, as with all bills brought before the House in the early stages, there are often modifications and amendments that need to be made to improve the bill.

This is not a perfect bill. In fact, there are areas with which I have some concerns. For example, the definition of torture in Bill C-242 is a different definition from the definition of torture under section 269.1 of the Criminal Code. The definition in section 269.1 of the Criminal Code is the same definition that is provided in article 1 of the United Nations convention against torture. The definition in Bill C-242, as I read it at least, seems to be more restrictive. Additionally, the sentencing in Bill C-242 is different from the sentencing under section 269.1.

We have a situation where, if Bill C-242 passed in its current form, we could have two different definitions of torture in the Criminal Code, two different tests for torture in the Criminal Code, and two different sentences under the Criminal Code, depending on whether the torturous act were committed by a state or non-state actor. That is a problem.

However, as I say, I will support this bill so that it can move forward, because it is a well-intentioned bill and, as the hon. member says, the victims of torture deserve that we ensure that the criminal justice system and the Criminal Code fully provide the remedies that are necessary to hold perpetrators of those crimes fully accountable.

Criminal CodePrivate Members' Business

April 21st, 2016 / 5:45 p.m.
See context

Charlottetown P.E.I.

Liberal

Sean Casey LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I rise today to speak to private member's Bill C-242, an act to amend the Criminal Code, inflicting torture.

I would like to begin by thanking the member for London North Centre for his advocacy on this very serious issue. We can all agree that torture and all forms of violence have no place in our society.

The bill before us seeks to amend the Criminal Code to create a new offence, specifically prohibiting any person from inflicting torture on any other person—that is, private torture—for the purpose of intimidating or coercing that person. This new offence would be punished by a maximum term of life imprisonment.

As I have said, we do condemn all acts of torture; however the government has issues with this particular bill. Briefly, this bill aims to prohibit torture committed by non-state actors. The new offence would be punished by a maximum term of life imprisonment.

In contrast, the existing crime of torture, found in section 269.1 of the Criminal Code, is restricted to state-actor torture, which is torture committed, instigated, consented to, or acquiesced in by a public official.

This bill aims to specifically denounce the worst kind of assaults, those that cause severe pain and suffering over a prolonged period of time. Victims of such attacks could include women victimized by the most abhorrent kinds of sexual assaults, and our hearts go out to anyone who has suffered these deplorable acts.

The amendments proposed by this bill, while put forward with good intention, are already addressed in our criminal justice system, and they create an inconsistency by proposing a punishment that is not consistent with how the Criminal Code already addresses torture; and it overlaps with the already existing crime of torture set out in section 269.1 of the Criminal Code.

The Criminal Code currently has numerous assault provisions. For example, there is the basic crime of assault in section 265 of the Criminal Code, which has a maximum penalty of five years' imprisonment. There is the crime of assault with a weapon or causing bodily harm, which has a maximum punishment of 10 years' imprisonment. Bodily harm is defined in section 2 of the Criminal Code to mean any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.

There is also the crime of aggravated assault, which has a maximum punishment of 14 years' imprisonment. Aggravated assault is defined as wounding, maiming, disfiguring, or endangering the life of the victim of the assault.

Also there are offences of sexual assault in the Criminal Code. For example, there is the crime of sexual assault in section 271 of the Criminal Code, which has a maximum punishment of 10 years' imprisonment. There is the crime of sexual assault with a weapon or threatening or causing bodily harm to the victim, which has a maximum punishment of 14 years' imprisonment. There is the crime of aggravated sexual assault found in section 273 of the Criminal Code, with a maximum punishment of life imprisonment. Aggravated sexual assault is defined as, when committing a sexual assault, wounding, maiming, disfiguring, or endangering the life of the victim.

As well, there is the crime of state-sanctioned torture set out in section 269.1 of the Criminal Code, which has a maximum punishment of 14 years' imprisonment.

Furthermore, the Criminal Code contains sentencing principles that can apply to non-fatal violence inflicted on victims. For example, section 718.2 of the Criminal Code sets out a number of aggravating factors that must be considered by a judge before imposing a sentence in relation to any crime.

Among these aggravating factors are the following: evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner; evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

In other words, the Criminal Code already contains crimes that capture the kind of conduct that Bill C-242 wishes to specifically catch, perhaps most notably the crimes of aggravated assault and aggravated sexual assault. Existing sentencing provisions do already provide a range of aggravating factors that could apply in a case of private torture.

In effect, I believe there is no gap in the criminal law that requires the creation of a new offence of private torture to provide for a remedy. The proposed torture offence in Bill C-242 is therefore not necessary. It is also useful to know that these existing laws can and do work effectively to address these types of cases.

Next let me address the issue that this would create an inconsistency in punishment. The proposed penalty for this new offence of private torture would be a maximum sentence of life imprisonment. I start with a basic proposition that similar crimes should be dealt with similarly.

As I have previously outlined, the crimes of aggravated assault and torture in sections 268 and 269.1 of the Criminal Code have a maximum penalty of 14 years' imprisonment. Even if the crime of aggravated assault is omitted from this equation, leaving us to compare just the offence of torture in section 269.1 of the Criminal Code to the offence proposed in the bill, the stark contrast in punishment remains: maximum punishment of 14 years in relation to section 269.1 versus life imprisonment in relation to the proposed offence.

Creating an offence of private torture could have the unintended effect of seriously weakening Canada's contribution to the focused global effort to prevent torture under the convention against torture. This could cause confusion as to what Canada considers to be its international obligation when it comes to the effective prevention of torture. This is because, as was indicated earlier in debate, there would be two definitions of torture, one of which, in the private torture offence, would be narrower than the internationally accepted definition of torture set out in section 269.1.

States that are reluctant to abide by the obligations set out in the convention could argue that they need not accept the internationally accepted definition of torture because Canada has enacted a private torture offence that contains a narrower definition.

It could be argued that this inconsistency could best be resolved by increasing the maximum punishment for torture in section 269.1 to life imprisonment. However, such a change would result in yet another inconsistency being created. The maximum punishment for aggravated assault would no longer be the same as that for torture under section 269.1 of the Criminal Code. It would remain at 14 years' imprisonment.

The result would be that someone who maims another by, for example, cutting off his or her hand, would be seen as less blameworthy than the state official or private individual who whips someone repeatedly.

In my view, it is far better to have the norm for maximum punishment for the most violent forms of non-fatal violence to be 14 years' imprisonment rather than to erode this norm by seeking higher maximum punishments for such conduct.

Let me address the final effect that the proposed offence would have on the Criminal Code. It would not complement the offence of state-sanctioned torture found in section 269.1. Instead, it largely overlaps with section 269.1 and thereby undercuts the exclusive jurisdiction of section 269.1 to address state-sanctioned torture. This is because it is defined so broadly that it captures anyone who commits the conduct defined as torture by the offence, whether private citizen or public official. Put another way, it is not restricted to torture committed by a private citizen.

The effect is that, if a case should arise where a public official commits torture as defined by the bill, a prosecutor would have the choice of prosecuting either under the new offence or the current offence found in section 269.1. Such a result is possible, especially if the prosecutor wishes to obtain the most severe sentence possible. He or she could avoid the 14-year maximum punishment for torture under section 269.1 of the Criminal Code by prosecuting under the proposed offence, which has a maximum punishment of life imprisonment.

In my view, creating this crime would likely have immense symbolic value to some of the most vulnerable persons in our society. However, symbolism alone is not enough reason to add yet another offence to the vast array of offences and sentencing procedures that already catch the most harmful kinds of assault and that already speak to Canada's ongoing efforts to protect the most vulnerable among us.

For these reasons, I am opposed to the bill, and I call on other members of the House to also oppose it.

I do wish to say in closing that the goal of the bill and the intent of the member is to advocate against violence, and that is a goal which we can all support.

Criminal CodeRoutine Proceedings

February 26th, 2016 / 12:10 p.m.
See context

Liberal

Peter Fragiskatos Liberal London North Centre, ON

moved for leave to introduce Bill C-242, An Act to amend the Criminal Code (inflicting torture).

Mr. Speaker, today I rise to table my private member's bill, an act to amend the Criminal Code, inflicting torture.

Article 5 of the UN Declaration of Human Rights states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.The UN Convention Against Torture, which Canada ratified in 1987, is in place for this very purpose. However, the Canadian Criminal Code falls short of addressing this major issue.

While a torture offence exists in the code under section 269.1, it only addresses acts perpetrated by state officials. When private individuals, acting outside of state authority, carry out equivalent acts that amount to torture, they are normally charged with aggravated assault. This does not properly reflect the human rights abuses that have been committed.

Private acts of torture have occurred in Canada and remain an issue in need of attention. These acts far exceed the offence of aggravated assault. This bill attempts to rectify the issue.

(Motions deemed adopted, bill read the first time and printed)