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 / 8 p.m.
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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.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

November 29th, 2016 / 7:50 p.m.
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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 / 7:40 p.m.
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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 / 7:35 p.m.
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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 / 7:35 p.m.
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NDP

The Assistant Deputy Speaker NDP Carol Hughes

Pursuant to Standing Order 97.1(2) a motion to concur in the fifth report of the Standing Committee on Justice and Human Rights (recommendation not to proceed further with Bill C-242, An Act to amend the Criminal Code (inflicting torture)), presented on Monday, October 17, 2016, is deemed moved.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

October 17th, 2016 / 3:10 p.m.
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Liberal

Anthony Housefather Liberal Mount Royal, QC

Mr. Speaker, I have the honour to present, in both official languages, the fifth report of the Standing Committee on Justice and Human Rights in relation to Bill C-242, An Act to amend the Criminal Code (inflicting torture).

The committee has studied the bill and while we very much thank the sponsor for his very hard work, we recommend not to proceed further with the bill.

October 6th, 2016 / 11:05 a.m.
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Liberal

Iqra Khalid Liberal Mississauga—Erin Mills, ON

Thank you, Mr. Chair.

Firstly, I'd like to thank Mr. Fragiskatos for his amazing efforts in really dealing with this very intense and very complicated issue.

At this time, I move that the Standing Committee on Justice and Human Rights, pursuant to Standing Order 97.1, recommend that the House of Commons not proceed further with Bill C-242, an act to amend the Criminal Code, inflicting torture.

While the principle of the bill is laudable, and the spirit and the intent are for victims, to really improve their state, I think the amendments proposed by the bill are redundant in light of existing Criminal Code provisions. These provisions can be used to deal with even the most serious forms of torture by private individuals. The existing offences of aggravated assault and aggravated sexual assault are specifically intended to respond to the most heinous types of non-homicidal conduct.

There could be better ways to ensure that judges clearly have the authority under section 718.2 of the Criminal Code to consider torturous conduct.

I also move that the chair present this report to the House.

October 6th, 2016 / 11:05 a.m.
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Liberal

The Chair Liberal Anthony Housefather

Good morning, everyone, and welcome to this meeting of the Standing Committee on Justice and Human Rights.

I welcome Ms. Laverdière, who is replacing Mr. Rankin this morning. It is a great pleasure to have you with us.

I am also pleased to welcome Mr. Amos, who is replacing Mr. Hussen.

Welcome, Mr. Amos.

I'd also like to welcome our witnesses from the justice department. We have with us Carole Morency, director general and senior general counsel, criminal law policy section; Glenn Gilmour, counsel, criminal law policy section; and, Dan Moore, counsel, human rights law section.

Welcome. Thank you for coming back. I'm glad we didn't scare you off the last time you were here.

Today, after having heard witnesses, we're moving to the clause-by-clause review of the private member's bill before us, Bill C-242, an act to amend the Criminal Code with respect to inflicting torture.

I think on behalf of all of the members of the committee, I want to thank Mr. Fragiskatos for having brought forward a private member's bill on such an important topic. I think all of the committee members from all parties were moved by the victims of torture who we heard from or who provided us with testimony, as well as the advocates on their behalf. We very much appreciate the views of the departments that provided testimony, as well as those of the other witnesses, such as the criminal defence lawyers, who provided us with greater clarity on the bill.

Regardless of how the bill is treated today, I think all of us recognize the importance of this issue as part of the overall review of the Criminal Code that the minister is going to be doing to make sure that we take very seriously people who are victims of torturous acts.

That being said, the committee has two options.

Today, the committee has two options. We can do the clause-by-clause study of the proposed bill.

Alternatively, the committee can move that the House of Commons not proceed further with the bill because we believe that perhaps there are other, better ways of addressing the issue. I would like to ask committee members for comments.

Ms. Khalid.

September 29th, 2016 / 11:05 a.m.
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Michael Spratt Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Thank you very much. It's an honour, and a privilege to appear before this committee.

I notice that I'm here alone in the hot seat with no one beside me, which is good because I don't have any written submission. I would welcome any oral questions, and I'll try to be as detailed as possible in my answers. It's a typical criminal lawyer thing to rely on oral submissions.

I would like to introduce myself. I'm a criminal defence lawyer. I'm a partner at Abergel Goldstein & Partners here in Ottawa. I'm also a member and former board member of the Criminal Lawyers' Association, and I'm here on that organization's behalf today.

For those of you who don't know, the Criminal Lawyers' Association is a non-profit organization that was founded in 1971. We're comprised of criminal lawyers, mostly in Ontario but also from across Canada. Our association has routinely been consulted by committees, such as this committee, and has offered submissions to some very important government consultations, and intervened quite often at the Supreme Court of Canada. The Criminal Lawyers' Association supports criminal legislation that's fair, modest, and constitutional.

I'm here today to talk about the very important issue of torture and Bill C-242. Although we agree with the aims and purposes of Bill C-242, and recognize the egregious nature of the acts that this bill captures, there are some significant problems from our perspective with the bill, both in the way that it's drafted and its potential application on how it would play out in our criminal justice system.

There are some areas that I don't feel I have the expertise to talk about, but I'm sure have been flagged for this committee, issues that deal with international law, conflicts between the definition of torture and how that might play out on the international stage. I would urge, and I expect the committee will hear, some expert evidence on that point.

Before I get to the practical implications of the bill, one of our main issues is the ever-expansion of the Criminal Code. Individuals are presumed to know the law. It's not a defence to be ignorant of the law, and over the last number of years we've seen an expansion of complexity, duplication, and volume in our criminal law. That is something which should be avoided because there's a cost to that as well.

One has to recognize that the acts sought to be captured under this legislation are already criminal and are covered by offences such as aggravated assault, unlawful confinement, and kidnapping. Kidnapping has a maximum penalty of life. The other offences, including aggravated assault, have maximum penalties of up to 14 years in jail. Of course, there could be other charges that would be captured by the acts contemplated in this bill.

As is the case with most topics in criminal law, there are always cases that seem unusual, cases where sentences seem too low. The Criminal Lawyers' Association is troubled by legislation that is aimed at particular cases or particular circumstances. Our system has a system of appeals, of prosecutorial discretion, and a robust common law history that is able to deal with cases where the sentence at first blush to outside observers might seem inappropriate. One has to recognize there are opportunity costs that are lost when we have complex legislation, and I'll speak about that in a moment.

From our perspective, the measures in the Criminal Code are sufficient to deal with the issues addressed through this legislation.

Looking at the legislation itself, there should be some initial cause for concern because it is both broader and more narrow than the existing torture provisions that apply to state actors. Obviously, the first difference between this new proposed legislation and the current legislation that applies to state actors is the penalty itself. I'm sure the committee is well aware that a prosecution under current section 269.1 carries a maximum penalty of 14 years, and the conflict between the life sentence proposed here and that 14-year sentence may cause some issues in court with respect to the application and indeed send a confusing message to the public.

Diving into the text of this very short bill, the definition of torture is slightly different between these two sections.

Under this bill, torture is defined, but the acts defined as torture have to be for a specific purpose, and that is for intimidating or coercing an individual. That definition also exists in the current state torture provisions, but the current state torture provisions have an additional list of factors that would be considered over and above an intimidating or coercing purpose. Those are listed in section 269.1(2)(a) under the definition of torture, and they include obtaining from the person or from a third person information or a statement, punishing a person for their act or the act of a third party, and importantly, for any reason based on discrimination of any kind.

Those further purposes are not present in this proposed legislation. In that respect, the definition of torture, the application of torture, will be more narrow. That conflict leads to some statutory interpretation problems and some application problems in our courts. At the same time, the definition of torture in the proposed legislation can be read more broadly than the current legislation. Under the current legislation where we're dealing with state actors, torture includes not only physical harm that leads to severe pain or suffering, but severe pain or suffering can be either physical or mental.

The current bill also contemplates mental injuries as a result of torturous behaviour but goes on to narrowly define that criteria, stating that the mental damage must be “prolonged mental pain and suffering...leading to a visibly evident and significant change in intellectual capacity”. I don't know what that means, and that would be the subject of much litigation before our courts. I don't know if that means there has to be a cognitive issue supported by evidence where there's a diminished capacity. I don't know if PTSD or other forms of mental health issues arising from torturous acts would be covered here. It seems that they would be covered if a state actor was involved. Those are some of the conflicts that could lead to some problems in application and litigation.

I do want to talk about some of the practical implications that this could have in our courts.

I have testified over the last number of years on a number of occasions, more than I would have liked to, about mandatory minimum sentences. Thankfully, there's no minimum sentence in this bill, but some of the same problems that we have with minimum sentences can carry over, and that is the use of either police or prosecutorial discretion with respect to laying and proceeding of a charge.

One can imagine a situation where an individual is charged with an aggravated assault, a forcible confinement or a kidnapping, and additionally torture. That individual may have a criminal record with offences of violence on it already. One can see a perverse and insidious inducement for that individual to plead guilty to offences in exchange for the crown not proceeding on the torture charge. That sort of prosecutorial discretion is something we have seen and something which my organization has complained about and flagged as an issue with mandatory minimum sentences. That problem is present here as well.

I should say, when I'm talking about the practical issues, and I spoke a little bit about opportunity costs and problems in that regard, that court time is valuable. Court time is becoming more and more valuable as our Criminal Code expands and as there are more prosecutions.

Ironically, as crime rates are decreasing, court time used to litigate these conflicts that I've indicated, constitutionality issues, proportionality issues, differentiating past precedent, that court time, in our opinion, could be much better spent dealing with the problem of over-incarcerated individuals who are awaiting trial, the scarcity of trial time. Those resources, quite frankly, could be deployed to better effect in other areas that do need real action to see an improvement.

I'm not a criminologist and I can't give you expert evidence on criminological factors or considerations, but I do have some experience. I've been speaking recently with pre-eminent criminologist Anthony Doob, who has testified many times before these committees on the issue of deterrence and how that plays with the criminalization of certain acts.

It seems unlikely, from my experience dealing with the practical realities in court and accused people, and from a review of the evidence in this context and in the context of mandatory minimum sentences, that the criminalization of an act, naming torture and having a specific provision in the code, will achieve any additional deterrence. The evidence is quite clear on this point that it's the likelihood of being apprehended, the likelihood of being caught, that provides deterrence. Additional penalties generally don't provide deterrence.

If someone were going to engage in acts that are already tantamount to aggravated assault, to forcible confinement, to kidnapping, to manslaughter, to murder, to attempted murder, merely having another section in the Criminal Code called torture would not likely deter the individual from committing those acts.

I don't want to minimize the conduct that's captured by this, and I hope my comments, critiques, and criticisms of this bill aren't taken to minimize the experience of anyone who's suffered at the hands of an offender. These are indeed egregious acts that should be treated very seriously.

The other justification that one could see being advanced in support of this legislation is that by somehow naming an offence specifically, reporting of that offence might be increased, so it might be more likely to attend a police station. I would be highly skeptical of that claim. I'd be very interested to see evidence in support of that.

At the end of the day, we have a Criminal Code that has a robust set of laws that deal with these types of very egregious situations. The cost weighed against the benefits of this specific bill, although laudable, in our opinion, simply don't pass the scrutiny that one should direct at Criminal Code provisions when we're legislating very important laws that impact our justice system and ultimately the potential liberties of people who are charged with contravening those acts.

September 29th, 2016 / 11:05 a.m.
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Liberal

The Chair Liberal Anthony Housefather

I would like to call this meeting of the Standing Committee on Justice and Human Rights to order.

Welcome everyone. It's a pleasure to have you here today.

We are continuing our study of Bill C-242, an act to amend the Criminal Code (inflicting torture).

Before we begin, I'd like to call members' attention to the fact that we have received our submission from Global Affairs Canada in writing, and it's in front of members. We can talk about that afterward in our closed session as well as the draft letter which is also in front of you.

It's with great pleasure that we welcome Mr. Michael Spratt from the Criminal Lawyers' Association.

Mr. Spratt, the floor is yours.

September 27th, 2016 / 12:05 p.m.
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Senior Assistant Deputy Minister, Policy Sector, Department of Justice

Donald Piragoff

The proposed amendment has brought back all kinds of language from 269.1 which Bill C-242 does not have. The proposed amendment has brought back in all kinds of attributes of state torture. It talks about consent, acquiescence, the defence of superior orders, and the exclusion of evidence. As Mr. Moore said, that is all part of a package that deals with state torture. Why would you want to bring all those attributes of state action into an offence that is supposed to be of domestic application?

As I said, it exacerbates the problem and creates more confusion, because now you have two offences with lots of attributes taken from the convention, stating that you must also punish acquiescence and consent, and you must exclude defence of superior orders, and you must exclude evidence. Why would you have to have that in a domestic offence? That's part of the international....

The proposed amendment actually makes things worse. Bill C-242 is starting to go in the right direction by creating a sui generis offence. It doesn't use many elements of 269.1. It uses a few. The most difficult part of the bill, not the proposed amendment, is that it will create two definitions and two offences of torture in the Criminal Code and both will be called torture. That then leads to all the problems that Ms. Wright had indicated.

As I said, Parliament is free to create an offence to directly address the intentional infliction of harm and the intentional causing of pain or suffering, but call it something else other than torture. If you feel that aggravated assault is not enough and you want something more denunciatory, either create a new offence to address exactly what you're trying to denounce or create an aggravated sentencing factor that specifies a reason why the judge should think about it at the higher end rather than the middle. If that's the case, it's a domestic offence.

Don't call it torture, because torture has a meaning in international law and don't confuse that meaning. It'll cause Global Affairs Canada problems when we're trying to hold other countries to account. When we say “torture” to other countries, we know what we mean by torture. It's not well, we mean this offence or we mean that offence. We mean the offence. Torture means what you signed when you signed the convention or we want you to sign the convention. That's the international definition. We don't want to say that there are lesser tortures and greater tortures. There's one offence of torture internationally and that's what Global Affairs wants to say to the rest of the world. That's why it's important not to have two offences of torture in name and not to have the elements of the offences so close together that they actually look like one another.

September 27th, 2016 / 11:05 a.m.
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Conservative

Ted Falk Conservative Provencher, MB

Just for clarification, if this were to become law and someone were to be convicted under Bill C-242 as it is right now, there actually wouldn't be any mandatory minimum sentence. Whereas if the conviction were under existing legislation, like aggravated sexual assault, there would be, in certain instances, as you've identified, a mandatory minimum sentence, but this particular legislation wouldn't have it.

Do you see any other areas like that where there's potential conflict? Would there be a situation that could arise where someone being cross-prosecuted would admit to what could be now under this legislation perceived as a less onerous punishment than under the existing laws that we have?

September 27th, 2016 / 11:05 a.m.
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Conservative

Ted Falk Conservative Provencher, MB

Very good. Thank you.

My first question would be this. In your opinion, is there a gap in our current laws surrounding the matter of private torture that you believe might be remedied with Bill C-242?

September 27th, 2016 / 11:05 a.m.
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Conservative

Ted Falk Conservative Provencher, MB

Mr. Chairman, I, too, want to thank the witnesses from Justice for attending committee this morning, and perhaps shedding some more light on some of the implications and intents and maybe ramifications of the proposed private member's bill, Bill C-242.

I have a few questions. Mr. Piragoff, are you taking the lead on these and going to distribute the questions as they come in, or do we need to address particular...?

September 27th, 2016 / 11:05 a.m.
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Liberal

The Chair Liberal Anthony Housefather

I would like to welcome everyone to this meeting of the Standing Committee on Justice and Human Rights.

We are continuing to study Bill C-242, an act to amend the Criminal Code, inflicting of private acts of torture. I am very pleased to welcome our witnesses from the Department of Justice who are here today.

We have Donald Piragoff, who is the senior assistant deputy minister in the policy sector, and Laurie Wright, who is the assistant deputy minister of the public law sector. We're also joined by Glenn Gilmore and Dan Moore.

Thank you so much, to all of you, for coming to testify before our committee.

Since we are studying a private member's bill, there will be no testimony from departmental officials. They will simply answer questions.

We will now begin our first round of questions.

We're going to start with Mr. Falk.