Bill C-242 (Historical)

An Act to amend the Criminal Code (inflicting torture)

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.

Opposition Motion—Coastal GasLink Project

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the President of the Queen’s Privy Council for Canada and to the Leader of the Government in the House of Commons]

Madam Speaker, let me start by indicating that this is a very difficult situation. No matter where we are in Canada, we understand the principle at stake here, and trying to simplify it does it a disservice. At the end of the day, we recognize how difficult it is for both indigenous and non-indigenous people, whether it is a specific community or the broader community.

The other day, the Prime Minister asked Canadians to continue to be patient as we try to work through this very difficult situation. We need to appreciate that there is a lot at stake. If we were to follow the advice of the Conservatives, we would be rolling the dice. I can say the odds would not be in our favour if we were to take their approach. There is a consequence to an action, and the actions that the Conservative Party has been presenting for a while now are, I believe, irresponsible.

The Conservatives often reflect on what is taking place with the leadership on this side. I like to think that it is not just the leader of the Liberal Party, but that we are also hearing calls for de-escalation from all political parties except the Conservatives. We are hearing from the different stakeholders that we need to de-escalate the situation as much as possible. Are the Conservatives helping, or are they becoming a hindrance?

The current leader has said we should send in the RCMP to get rid of the blockades. Peter MacKay, the wannabe leader of the Conservative Party, has tried to glorify individuals who were tearing apart a blockade as if being a vigilante is a good thing. Yes, he has retracted that particular tweet, but I would suggest that the words we are hearing from the current and potential future leadership of the Conservative Party are not helping the situation, nor is this motion.

If the Conservative Party wanted to contribute to the debate, we could have talked about the issue of reconciliation today. Different parties have different perspectives on it. I rather enjoyed the parliamentary secretary's most recent speech a few minutes ago when she talked about the types of things the government has done to advance us toward reconciliation. Over the last couple of days I listened to members from the Bloc, the NDP and the Green Party talking as well about the ways in which we can not only de-escalate the situation but also broaden the debate to talk about the issue of reconciliation. I truly believe the Conservative Party would do more of a service for Canadians if its members adopted the same attitude.

We understand the impact that the situation is having on the Canadian economy. We have representations in all regions of this country, including western Canada, an area I represent personally. I understand the economics just as well as the Conservatives, who proclaim they are concerned about the economy. Need I remind the members opposite of the so-called LNG project? By working with the Wet'suwet'en, the NDP provincial government in British Columbia, the national government, business and the private sector, we were able to accomplish the greatest, most significant capital infrastructure commitment, which was billions of dollars to create the LNG project.

Today we heard often from the Conservatives that the majority of the members of the Wet'suwet'en community support this economic adventure. That took a great deal of effort, not only in the community itself but also in gaining support from the government in British Columbia, the national government, the private sector and more.

We even have the Bloc recognizing that the federal government has a role to play in issues of this nature. Whether it is economic development for the betterment of all Canadians, when we have issues of this nature from time to time, it is the way we deal with those issues.

To try to give the impression that nothing has been happening for the last couple of weeks is just false. Casting aspersions on a lot of fine work that has been done, whether by the government of B.C., the Wet'suwet'en community leaders or the national government and the role that we have played is wrong. To try to imply that nothing is happening is false.

We could all give some encouragement and a vote of confidence to our RCMP. We tend to differ from the Conservative opposition in that we believe and have full confidence in our RCMP, in our law enforcement agencies, and we believe that political parties do not have the right to direct them to arrest that person or that group of people. It is not our place to do that.

People should be concerned when the official opposition members who hope to be in government someday say that they would give specific direction to the RCMP. I refer to Peter MacKay's quote from his twitter account. We should be concerned about those types of knee-jerk reactions coming from Conservative leadership.

In the broader picture, I would have liked to see a discussion or debate on those types of issues. There is a great deal of interest in the issue of reconciliation. When I listen to the New Democrats and the Green Party, I often hear we are not doing enough. I would suggest that we have accomplished a great deal, and there is still more to do. I think of some of the actions that we have taken in a relatively short period of time, such as dealing with heritage language, dealing with the tens of thousands of children in foster care or in the welfare system with the shifting over and empowerment that is taking place in indigenous communities as a result, or statutory holidays, or the issue of citizenship, or the 94 calls for action, many of which required action by the federal government, and which we have responded to. There has been debate as well on the former private member's bill, Bill C-242, on the UN declaration, so we have seen many measures in the last number of years that reached out and took active steps toward positive reconciliation.

That was completely foreign to the previous government. When the Conservatives were in power, we did not see anything of that nature.

I believe if we want to continue to see the economy moving forward as it has, with over one million jobs over the last four years, we need to recognize that working with different stakeholders and working with indigenous communities in the economy and the environment is absolutely essential. It is not an option. As the Prime Minister has indicated, we need to have patience as we try to work through this very difficult situation, realizing that it does cause a lot of frustration for all of us here in Canada.

Justice and Human Rights

[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.

[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 NDP, 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.

[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.

[Sean Casey, Liberal, Parliamentary 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.

[The Assistant Deputy Speaker, 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.

[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.

Citizenship Act

[Peter Fragiskatos, Liberal, London North Centre, ON]

Mr. Speaker, I appreciate the opportunity, and I thank my hon. colleague.

My private member's bill, Bill C-242, proposes an addition to the Criminal Code of a charge of inflicting torture. We do have a charge on the books now as it stands in our Criminal Code, which is a torture offence that applies to acts of torture carried out by state officials, but there is no offence in our Criminal Code that would recognize equivalent acts carried out by private individuals operating in the private realm, who are not state officials. This has happened in the past, and there are many instances and examples.

The bill I have proposed is a measure to boost the public safety of Canada, but also to do so in a way that underlines human rights principles and enshrine those further in the Criminal Code of Canada. When we protect human rights, we increase public safety.

The UN Universal Declaration of Human Rights, in article 5, condemns torture. Our Criminal Code condemns torture but only in part, and it needs to go one step further.

I thank my hon. colleague for allowing me to sum up the bill for colleagues who might not know about it at this stage.