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.

[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...?

[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.

[Jeanne Sarson]

Okay.

In reference to naming the infliction of torture, non-state torture victimization causes grievous destructive dehumanization. Some women describe not knowing that they were human beings. Some did not know they had physical bodies or skin, or that having their anus hang outside of their body was not normal. These are impacts of repetitive non-state torture, of which sexualized torture is never-ending.

The severity of non-state torture pain becomes repeated when women's flashback memories surface. Flashbacks transport them into past ordeals, re-experienced at the age when they were tortured. They can refeel the burning and the cutting of their skin, the jaw pain, and the taste of oral torture rapes, trying not to panic when feelings of being unable to breath return. They can re-experience their body convulsing to the electric shock torture, re-experiencing the terror and the horror of when, for example, they were two.

I can shorten that and go on to say that Sara, who Linda mentioned, is 30 years old. She has a master's degree. When her memories came back, she talked about them at the age of two. When she was telling us about one experience, she said, “It can't go into the little door”, meaning her vagina. “The monster”, meaning penis, “is too big.” “The water is turning red,” meaning that she was hemorrhaging, “just like the crayons in my colouring book.”

What we found is that when women are trying to heal, their memories come back at the age they endured what happened to them.

The other thing that happens is that sometimes, when they're being water tortured, for example, and they're trying to breathe, the panic sets in. The terminology that we found universally is that they say, “We go into the blackness”, and we've understood that they go unconscious. Here, again, their suffering is not aggravated assault.

Under “interpretation”, I'd like to give you an example of why Linda and I are saying we'd like you to consider that in non-state torture it's not always a significant change in intellectual capacity. I'll give you another example. The youngest person who came to us was in her late teens. She wasn't being believed and she was accused of lying. She was struggling not to kill herself, which is a common response to mental suffering.

She disappeared after a couple of years of our support. Seven years went by, and out of the blue we got this email from a friend, “I'm sure you remember Sophie....she will be graduating from Nursing School with a Masters degree and above a 3.9 GPA. She is happy, enthusiastic participant in life.... She told me, the other day, that she hasn't considered killing herself in a long time. Your kindness and support to her surely helped. I thought you may want to know.”

That is evidence that we have to consider exactly what goes on.

In reference to some of the questions that were asked of Peter on why it is important to have legal naming, it's a very inexpensive national intervention. This is what Alex has written to us, “When society minimizes [non-State torture]...it is taken personally...and feels like it is...me...they are looking down on....reinforcing the feeling of how they minimized my worth when they tortured me.... Not having the law care enough...reinforces what the [torturers] said, 'No one will believe you. What makes you think you are so special that someone would even want to save you or care about you'.”

That was her take on why it's very important.

The other thing around naming is that it decreases the social isolation. Many women have told us that they feel like freaks because it's not known what they've endured. That was the other benefit to proper naming.

With regard to the issue of the need to toughen the laws and look at non-state actor torture and keep survivors and children safe, I reference what Jody Wilson-Raybould said about the mandate letter of Justin Trudeau that was sent to her, and Ms. Hajdu's mandate letter. They were asked to look at these issues.

The issue of naming non-state torture gives voice to infants, to preverbal children, and to older children who are not at this table, whose Internet pornographic victimization show sexualized torture and bondage of newborns and of children up to age eight increasing. They're victimized mainly by family and friends. That's documented by the National Child Exploitation Coordination Centre, part of the national police services and Public Safety Canada. I have some of the data in this statement.

Just to let you understand that what we've learned is that people who are responsible for the safety of children.... One example they need to know is that stalking and harassment by family-based perpetrators can begin at age five when parents become volunteers in the school. That's a tactic that women have told us about. That keeps them silent and psychologically captive.

Also, in talking to the police—Linda and I have been talking to the police in the last little while—they are shocked probably by what we're telling them because they tell us they haven't heard some of this before. To educate police, they have to know that the crime of non-state torture happens and they have to know the tools that are used. For example, we surprised them when we said that women have told us that a hot light bulb is used to sexually torture them, if you will, when it's rammed into their vagina as little girls.

Just to talk about law that can inform educational sessions, Linda and I were asked by a grade 12 teacher of students who were studying political science to talk about political advocacy on Bill C-242. The scenario we presented to the students is that they imagine that they're MPs and they have to study Bill C-242 and learn about what non-state torture is. First they started with a questionnaire where they had to decide what they thought the difference was between torture and assault, and I can tell you they picked assault as a lesser crime than torture. After we taught them, they had to make a decision how they would vote on Bill C-242. That's what happened, and they were quite dismayed that there was no non-state torture law in Canada. They believed that such a law is not symbolic and they voted to amend the Criminal Code.

I guess what Peter has said about article 5 of the Universal Declaration of Human Rights.... That's where we started in 1993 when we were shocked to find out that Canada was not recognizing non-state torture as a crime. I think for Canadian society, if we're going to be truth-tellers, we have to admit to what's happening to children of all ages—and adults—in this country.

I hope that's quick.

[Linda MacDonald, As an Individual]

Thank you.

First, I want to say that Jeanne and I really support the bill, and we thank Peter for bringing it forward. It is an important piece of work.

In the three recommendations we have in the brief that we submitted to the committee, we would agree with the 14-year sentencing. We think that the naming of “torture” is crucial and we want to maintain that. The bill would not be symbolic. It would certainly be a concrete example of supporting human rights and legal rights in this country. Finally, intellectual disability does not always happen with non-state torture.

Jeanne and I come today carrying the voices of many invisible persons in our country, persons who have endured non-state torture or torture in the private sphere or private realm. Our testimony is based on what we have learned from their courageous voices. We have been advocating for 23 years for their human and legal rights. We are community health nurses, non-state, torture-informed counsellors, listeners of non-state torture atrocities, human rights activists, international lecturers, educators, writers, members of the NGO Canadian Federation of University Women, mothers, grandmothers, and proud feminists.

Jeanne and I live in Nova Scotia, and in 1993 began a small private nursing practice. In August of that year, we met the first woman we came to know as a survivor of non-state torture. Since then, we have provided complex support to 34 persons, mostly women. We have listened to and supported over 1,000 Canadians who have endured non-state torture and approximately 4,000 persons worldwide, from the U.S., the U.K., western Europe, the Philippines, Australia, and New Zealand.

The persons from Canada are Canadian-born. The majority endured non-state torture from infancy onward. That means they were little babies. Some married their torturers; some were their roommates. The majority were trafficked, forced into non-state torture pornography filming, or prostituted. The perpetrators of non-state torture are everyday persons such as parents, extended family, family friends, guardians, strangers, spouses, human traffickers, pornographers, pimps, and johns.

The children are groomed to endure torture as perpetrators pay money, knowing they can harm children who can withstand non-state torture. Bishop Raymond Lahey from Nova Scotia was jailed for possession of child pornography, and a file labelled “child torture” was found on his computer.

“Non-state actor” is a term used by the United Nations, and perpetrators who are non-state actors inflict torture in the private sphere. Key defining elements of torture are that it is intentional and purposeful, inflicting severe pain and suffering with the ultimate goal of shattering the persons' relationship with themselves.

To give you a better sense of what we mean by “non-state torture” and the brutality and gravity of the harm, I will read Lynne's story. She was a woman born in Nova Scotia whom Jeanne and I supported. Sadly, Lynne is now dead. This story was published in the journal of the Canadian Centre for Victims of Torture.

I was called bitch, slut, whore and “piece of meat.” Stripped naked and raped—“broken in”—by three goons who, along with my husband, held me captive in a windowless room handcuffed to a radiator. Their laugher humiliated me as they tied me down spread-eagled for the men they sold my body to. Raped and tortured, their penises and semen suffocated me; I was choked or almost drowned when they held me underwater threatening to electrocute me in the tub. Pliers were used to twist my nipples, I was whipped with the looped wires of clothes hangers, ropes and electric cords; I was drugged, pulled around by my hair and forced to cut myself with razor blades for men’s sadistic pleasure. Guns threatened my life as they played Russian roulette with me. Starved, beaten with a baseball bat, kicked, and left cold and dirty, I suffered five pregnancies and violent beatings forced abortions. They beat the soles of my feet and when I tried to rub the pain away they beat me more. My husband enjoyed sodomizing me with a Hermit 827 wine bottle causing me to hemorrhage and I saw my blood everywhere when I was ganged raped with a knife. Every time his torturing created terror in my eyes, he’d say, “Look at me bitch; I like to see the terror in your eyes.” I never stopped fearing I was going to die. I escaped or maybe they let me escape thinking I’d die a Jane Doe on that cold November night.

Further to this, I can share a questionnaire we give to persons who contact us. Bear in mind that these harms are not endured in isolation as many women tell us they suffered most harms all at that same moment in time. The questionnaire is something we send out to people who contact us, to try to help them see if indeed they could be a non-state torture survivor.

It includes the following: food/drink withheld; chained or handcuffed to stationary objects; savagely and repeatedly beaten, kicked, hung by limbs; burnt, cut, whipped; fingers and toes and limbs twisted; tied naked for prolonged periods; forced to lie naked on a floor; confined to a dark enclosed space or crate or box or cage; electric shock; forcibly aborted; forced to eat one's vomit or bowel movements; raped by one person; raped by a family group; raped by a weapon such as a gun; raped with animals; prevented from using the toilet; smeared with urine, feces or blood; forced under cold or burning-hot water; placed in a freezer; near drowned when held under water in a tub; drugged with alcohol, pills, injections; choked; pornography pictures taken; forced to harm others; forced to watch pets being harmed or killed; threatened that this will happen to you if you tell; called derogatory names.

In most cases, sadly, I can tell you that the majority of people can list off that they have endured most of these. That's a high standard of intention of harming.

The evidence of non-state torture occurring in Canada is not new. There are government reports dating back as far as 1979 noting the torture that women in this country have endured. In this report that we sent to the Minister of Justice we have documented all of the different government reports starting in 1979 stating that torture happened to women.

The first one was “Pornography and its effects: A survey of recent literature”. In 1985 there was a written report to the Special Committee on Pornography and Prostitution. It mentions torture. In 1987 a booklet issued by the Canadian Advisory Council on the Status of Women talked about torture and mutilation of women. In 1991 “The War Against Women” was the first report of the Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women. It talked about a husband who tortured his wife. In the 1993 report “Changing the landscape: ending violence, achieving equality” torture was mentioned. We spoke with persons involved with the report, and also the report itself mentioned that torture happened in every region of Canada.

The 2010 report “Forsaken: The Report of the Missing Women Commission of Inquiry” by Mr. Oppal talked about the right not to be subjected to torture. In 2010 again “Missing Women: Investigation Review” talked about the investigation of Donald Bakker regarding the torture of women in prostitution. In 2013 the RCMP report “Domestic Human Trafficking for Sexual Exploitation in Canada” talked about victims who also reported torture tactics. The 2014 report by the Native Women's Association of Canada mentioned torture many times and says that torture is torture.

This is what we, as a country, know about what's happened with regard to torture and women in our country.

A fundamental point supporting Bill C-242 is that presently there is a patriarchal divide creating discrimination between persons who endure state torture and those who endure non-state torture. The ordeals of torture are the same, yet section 269.1 of the Criminal Code names only state torture, leaving non-state torture to be misnamed and minimized as assault in section 268.

Jeanne and I have estimated that a woman, who we will call Sara, who was tortured and raped since infancy, had endured almost 24,000 rapes. This does not include the object and gang rapes or bestiality she was subjected to. Her suffering was not assault. The correct name for the ordeal Sara was forced to endure is non-state torture, because indeed suffering is not symbolic.

In 2012 Jeanne and I, as members of the Canadian Federation of University Women, gave expert testimony related to non-state torture to the committee against torture in Geneva. The committee agreed with the CFUW recommendation to amend the Criminal Code of Canada to include non-state torture by non-state actors, and I'll just read a section of their report:

The Committee is of the view that the incorporation of the Convention into Canadian law would not only be of a symbolic nature but that it would strengthen the protection of persons allowing them to invoke the provisions of the Convention directly before the courts.

Those are the committee against torture's own words.

In 2017, Canada will be reviewed by the committee against torture again. We have submitted a brief to the Department of Canadian Heritage with the same recommendation to revise the Criminal Code. If Bill C-242 is passed, we can go back to the committee and proudly report that Canada has shown great leadership in human rights by including non-state torture in our Criminal Code. The alternative is unconscionable.

[The Chair, Liberal, Anthony Housefather]

Gentlemen, we are going to reconvene our meeting of the Standing Committee on Justice and Human Rights in the study of the proposed private member's bill, Bill C-242.

We are honoured to have before us two of the seminal writers in this area in Canada. I am pleased to welcome Linda MacDonald and Jeanne Sarson, who are here to testify.

Ladies, welcome. It is over to you, to make your opening statements.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Another concern I had, and I raised it when I spoke in the House on your private member's bill, was the difference in terms of sentencing under Bill C-242 and section 269.1 of the Criminal Code. Under section 269.1, the sentence is up to 14 years' imprisonment, whereas under your bill, Bill C-242, it would be life imprisonment.

Arguably, you would be creating two different tests, two different standards, and two different sentences, depending on whether the act was carried out in the state context or the non-state context. Have you been able to reconcile that issue?

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

Thank you very much, Mr. Chair.

Thank you, colleagues.

It gives me great pleasure to appear before you today to formally address my private member's bill, Bill C-242, an act to amend the Criminal Code (inflicting torture).

It is humbling to see the bill reach the committee stage, and I would like to make clear from the outset that I am willing to enter into a dialogue that will make the bill stronger and more legally palatable from your perspective. As stated in the House of Commons earlier this spring, I am open to a range of amendments and encourage committee members to make any suggestions they believe will improve the bill.

Furthermore, should you require a clarification as to why I chose a certain direction, please do not hesitate to ask following my statement.

I am not an expert law-maker; however, I did a great deal of research and consulted widely prior to tabling the bill that has come before you today. I also taught human rights policy at the University of Western Ontario prior to becoming an MP. It was there that these sorts of issues were first encountered by me and inspired the bill. Part of my Ph.D. thesis also focused on issues of torture, hence my interest in the issue.

With that said, after being drawn ninth in the private member's 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.

Article 5 of the Universal Declaration of Human Rights states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Thankfully, Canadian law does not ignore this principle. A torture offence exists in section 269.1 of our Criminal Code.

The problem, however, is that section 269.1 only applies to state officials. Examples include police or military personnel who might inflict severe pain repeatedly and over a prolonged period of time to intimidate or coerce as a way to extract information, or for some other purpose. Yet when the same actions are perpetrated by private individuals who have no tie to the state, the offence is usually called aggravated assault. As many as you are already aware, kidnapping is also applied as a charge, and assault with a weapon or forceable confinement are other possibilities as well.

Some detractors believe these charges are good enough. They believe that although torture committed in the private realm can happen, the problem is in fact exaggerated.

I would respond to that criticism by saying, tell that to those who have endured torture. I will only point to a few examples. There are many others that have occurred in recent years. The details, while difficult, are extremely 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 the 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 received a two-year sentence for what amounts 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 seems to have been done with the intention 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 word choice would have been “torture”, because that is exactly 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 seems 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 took place.

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. This is a long-established human rights principle. Indeed, this lesson underlined the Truth and Reconciliation Commission process on residential schools. Using terms such as aggravated assault does not adequately speak to the grave human rights violations that have been committed.

Finally, some criticize the bill because it calls for a sentence of up to life imprisonment, while 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, I am also extremely open to suggestions and amendments to the specific sentence that would make the bill more legally responsible from your perspective. Thus, rather than aiming to do everything, and as a result accomplishing nothing, I 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, and civil society organizations. I also worked through various drafts and continuously consulted with the Department of Justice.

The legislation was drafted by expert bureaucrats trained in the law. I value the support they provided, and the passion they show for their work each and every day. The world is shaded in grey, and so too is most legislation. Given a choice between ignoring an unjust status quo, or changing it imperfectly, I opted for the latter. Torturers aim to rob individuals of their dignity. They do so through the intentional and repeated infliction of severe pain, suffering, and humiliation over a prolonged period of time for the purpose of intimidation or coercion. These actions have no place in a free and open democratic society such as Canada.

Furthermore, it is true that torture, from an international legal perspective, has traditionally been understood as a state crime. I acknowledge that, I respect that, but add crucially, that the definition has indeed shifted. The committee against torture, which is responsible for monitoring the UN torture convention, 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 of Canada, 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. It's time to act and make positive change happen.

With that said, in addition to receiving support from an abundant number of individuals, colleagues from various parties, and groups from across Canada, I would like to highlight a few truly significant national endorsements that Bill C-242 has received.

The Native Women's Association of Canada, the voice for indigenous women and girls in this country, has offered its full support of the bill. Amnesty International has committed its support, in principle, for what Bill C-242 is trying to achieve. They also firmly condemn torture in the private sphere.

The Canadian Nurses Association has endorsed the proposed legislation. The CNA is the national professional voice of nearly 139,000 registered nurses across Canada. The Canadian Federation of University Women, a non-partisan, equality-seeking, self-funded organization of close to 9,000 women in 112 clubs across Canada, has committed to being a fervent advocate for the proposed legislation. Its representatives are here today.

Furthermore, I would also like to thank the residents in my riding of London North Centre for their unwavering support. I have heard from my constituents and recognize their desire to see the proposed legislation succeed. The support of the London Abused Women's Centre, and its director Megan Walker, is extremely and sincerely appreciated, as is the support of the chief of police services in London, John Pare. I thank them both very much.

With that said, I would also like to commend Linda MacDonald and Jeanne Sarson, from Nova Scotia, who will appear before you shortly. These two women are staunch advocates for the inclusion of torture in the private sphere into the Criminal Code. They have worked for over two decades to advance this important cause—not just in Canada, by the way, but in the international domain as well.

Once again this is not a perfect piece of legislation, but then again I am not sure if any piece of legislation is ever perfect. However, I am open to any potential amendments suggested by this committee. This would include lowering the term of punishment.

It would be a sincere shame to have this important bill defeated because of concerns related to technicalities that could easily be altered. I ask my colleagues here today, when reviewing the bill, to ask yourselves the following questions. Do you believe that human rights matter? Do you believe torture has no place in our society because it robs individuals of their humanity and of their dignity? Do you believe the way to enhance 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 and into our Criminal Code?

If you answered “yes” to these questions, then we must work together to ensure that Bill C-242 is strengthened and referred back to the House for further consideration.

To conclude, the bill is not about me. It has never been about me. I dedicated the bill to all victims of torture when I first put it forward, and that has not changed. To them I say, your voice matters. I have listened to you, and I am working and willing to do whatever is necessary to ensure the bill continues to progress.

Thank you very much, colleagues.

[The Chair, Liberal, Anthony Housefather]

Good morning, ladies and gentlemen.

Welcome to the Standing Committee on Justice and Human Rights.

Pursuant to the order of reference of Thursday, April 21, 2016, we have before us an act to amend the Criminal Code regarding inflicting torture, Bill C-C-242.

I'd like to take this opportunity to welcome some members who are substituting this morning and haven't been with us before. Ms. Stubbs is here, and Mr. McCauley, Ms. Hardcastle, and Mr. Rusnak. It's nice to have all of you here. I'm sure you will very much enjoy our witness, Mr. Fragiskatos.

Mr. Fragiskatos, it's a pleasure to have you here as well, although you subbed on the committee before. We're very excited to hear from you on your bill. I'll invite you to make opening statements.

Criminal Code

[Sean Casey, Liberal, Parliamentary 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.

[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.

[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.

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.

Criminal Code

[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)