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 does this motion, will.

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 have seen 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.

[Megan Walker]

Thank you so much for having me here today. It's lovely to see you and lovely to have London North Centre MP Peter Fragiskatos with us at the table today.

The London Abused Women's Shelter provides advocacy, support, and counselling to women and girls over the age of 12 who experience male violence in their intimate relationships, by their pimps and/or sex purchasers, and in the workplace.

We are a very small organization with 11 staff and a mandate to ensure that all women have immediate access to service. Last year, our small office served 6,045 women and girls. During the last three years, our prostitution and trafficking-specific programs have been attended by 1,664 trafficked, prostituted, sexually exploited, and at-risk women and girls. That is probably more than anywhere else in the country. Our programs are very popular, and we are grateful that we can provide them.

We also support families from across the country. Last year, we supported 140 family members, who sometimes just flew in from other provinces, or sometimes even from the territories, looking for their daughters who have gone missing into this horrible world of trafficking.

Two-thirds of all trafficking in Canada originates in the province of Ontario. Girls are recruited into trafficking for the purpose of prostitution and pornography. They're recruited at bars, at universities, in high schools, and in their workplaces.

London, as Peter will attest, is a hub of trafficking activity. Girls and women are recruited both from and to London. The lead with our London Police Service human trafficking unit recently said that trafficking is an epidemic in society.

The trafficking unit provided service to many girls between the ages of 11 and 17. These girls and women are trafficked by their boyfriends, family members, and organized crime. By organized crime, we often think of bikers or the Mafia, but I'm talking about small gangs that exist in communities across the country.

We need to recognize that there is a relationship between organized crime, male violence against women in intimate relationships, and trafficking. As has been stated already, trafficking of women and girls is highly profitable, unlike trafficking of weapons or drugs, where the trafficker has to continue to spend more money to get more supplies. Traffickers can make money off of the same woman over and over again.

Many women we work with have been forced by their pimps to bring home every day between $1,500 and $2,000. This means that they are providing sexual services and fulfilling the porn-fuelled fantasies of anywhere between 15 and 20 men per day.

We ask that you please try to understand and acknowledge that there is a relationship between prostitution and trafficking and that prostitution is inherently harmful, violent, and dehumanizing. Prostitution fuels trafficking.

Our current legislation in Canada criminalizes pimps, brothel owners, and sex purchasers and has been identified by many police services across this country as a valuable tool to help them in their fight against trafficking. On a side note, a recent Ipsos poll on Canada's prostitution legislation found that 58% of those living in Ontario support the current legislation.

I know how difficult it is for people to hear about repeated torture that is experienced by prostituted, trafficked, and sexually exploited women and girls, but to understand the significance of the issues, it's important that you hear about it.

Most trafficked girls have no idea what their trafficker has negotiated with the sex purchaser. When men appear to fulfill a rape fantasy, as an example, the woman has no idea. The man is given a card to get into her room, comes in, and literally rapes her as his fantasy. That experience for her leaves her feeling as if she was just raped, and she's left deeply traumatized.

We know some of the experiences women and girls share with us, particularly when they're trafficked into pornography. They are waterboarded. They are strung from the ceilings by their feet while being whipped, beaten, and electroshocked on their labia and in their vaginas. Their feet are repeatedly beaten until they are swollen and bleeding, and their nipples are nailed to wooden boards to stop them from moving.

This is torture. It can be called nothing but torture. It's torture in the private sphere, and it does require legislation to acknowledge it as non-state torture, so that women's experiences are validated.

We know that Liberal MP Peter Fragiskatos tabled a bill in the House of Commons to amend the Criminal Code regarding the inflicting of torture. It was known as Bill C-242. We felt that it was minimized when it came to this committee and minimized at the House of Commons in Parliament. Only two experts in non-state torture were called, no victims, and it was then sent back to Parliament, where on November 29, 2016, its status became known as dead. It's appropriate to call it dead. “Dead” is the exact word used when tortured women and girls are asked how they feel, and of course it's the word we all use when women are killed as a result of torture—“She's dead.”

Pornography today is extremely violent and has resulted in the murder of women on film. Men who watch pornography learn that women are nothing more than disposable objects who exist solely to satisfy male fetishes. The average child will watch pornography at age 11. When I go into school grounds and I see a group of kids huddled, I go over—it takes only one kid with a phone—and they're all watching pornography. These are kids in grades 2, 3, and 4.

In pornography, women are pulled by their hair to a bathroom where their heads are shoved into the toilet while it is repeatedly flushed. Women are shown in the videos fighting to live and gasping to breathe while inhaling water and choking, yet the more they fight, the longer their heads remain in the toilets.

Men in pornography, like many men in society, want women and girls to know they have both the power to kill them and the power to bring them back to life. Women and girls are forced to endure multiple men ejaculating on their faces, and unprotected anal-to-oral sex is the norm. These women and girls suffer from trauma and significant health issues like syphilis, gonorrhea of the eye, and prolapsed anus.

M-47 was a motion introduced by Conservative member Arnold Viersen. It was referred to the Standing Committee on Health to examine the public health impacts of pornography. The committee provided a response that failed to address the systemic public health issues in pornography. Instead, the committee addressed it as an issue of sexual health to be resolved by education. That's not appropriate.

I'm getting to the recommendations. Are you about to tell me I'm at 10 minutes? I say I'm at eight.

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 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.

[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, 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.

[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.

[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.

[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.

[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.

[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.

[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.

[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?

[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?

[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)