Justice Committee on Sept. 22nd, 2016

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

I believe in the Charter of Rights. I believe in Lester B. Pearson's vision of Canada. Now, Ted was asking very nice questions. Maybe now he's not looking at me in such a fond way, but go ahead.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you.

You touched on this, but I wanted to give you another opportunity to describe why it's important for the term “torture” to be applied to the sorts of crimes that you describe.

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

As I said, I think it's absolutely crucial that we acknowledge what has taken place. In the example I gave before, when I said that aggravated assault is a term that can equally be applied to and is applied now to what are acts of torture but it can also be applied to a trivial instance such as a fist fight, that's not my example. That is an example that came to me from speaking with a victim. They told me that, and that resonated with me a great deal. When torture happens we need to acknowledge it, whether it is a military official who was acting in that way, or whether it is a private citizen who was acting in that way. These crimes have happened and we need to acknowledge that they've happened, but we need to call crimes what they are, mainly, as I said, for healing to take place.

[Chris Bittle, Liberal, St. Catharines, ON]

Are there concerns that your call for life imprisonment puts torture in the private sphere on par with murder, which carries a life sentence? Is that your intention?

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

I suppose I can answer that question from a principled perspective. I think, philosophically, one could make the case that when one is tortured, that crime is on par with murder because one is robbed of one's humanity. It is a murder of a certain type, of a particular type. I take your point that it's on par with murder because I've called for a life sentence, but legally speaking, there are other crimes in the code where a life sentence is applied. Aggravated sexual assault, in section 273 falls in that category. For treason, subsection 47(1), a life sentence is called for there.

It's not terribly inconsistent from that perspective. However, one has to put water in wine sometimes. As legislators, I think we all know and recognize that, and for that reason, if the committee were of the view that the sentence ought to be vastly reduced, even down to 14 years, then I would be open to that.

[Chris Bittle, Liberal, St. Catharines, ON]

You briefly touched on France and Australia and I believe there are some states within the United States that have similar types of legislation. Are there other examples of that? I know we've also heard the concern from detractors of the legislation that this proposed legislation may not meet international commitments. I was wondering if you could also touch on the fact that France and Australia have this legislation, and perhaps certain jurisdictions in the U.S., and still are within that framework.

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

In “General Comment No. 2”, the committee against torture—this is going back almost 10 years ago, by the way—recognized that torture in the private sphere qualifies as torture. As I said in my remarks, the committee against torture has a responsibility for monitoring the UN torture convention. I look at it from that perspective. If torture in the private sphere is recognized as torture by the committee against torture, then certainly the international legal perspective on this has shifted.

Torture, yes, of course, at one time it was considered a state crime, but that has changed. Certainly we see laws in place in Australia and France where torture is recognized. There are American states that have taken action on this as well. A few examples would be Michigan and California. At the international level Australia and France have led the way on that. As far as this legislation goes, it is not reinventing the wheel. There is legal precedent.

[Chris Bittle, Liberal, St. Catharines, ON]

Do you know when France and Australia brought in their legislation?

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

In the case of Australia, it goes back about 15 years. In the case of France, it goes back about 20 years, if my memory serves me.

[Chris Bittle, Liberal, St. Catharines, ON]

Were there any consequences that you're aware of in the international community for enacting the legislation?

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

No. As far as I know the sky hasn't fallen. The ramifications of those laws have not compromised the international obligations of Australia or France, for that matter, on the issue of torture.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Bittle.

Ms. Hardcastle, you're up.

[Cheryl Hardcastle, NDP, Windsor—Tecumseh, ON]

Thank you very much for the background on the work that you've done on addressing the capacity for a private citizen to conduct torture, and for another one to have endured it.

I think that brings me to our role and our responsibility internationally. I'd like to hear you talk a little bit more about the optional protocol on torture. The United Nations calls for us to enshrine that in the Criminal Code. Do you think this is an advancement, a step forward for us in that scenario?

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

I think any time we're talking about punishing torture, it is something that we can all be proud of. Torture goes contrary to basic democratic principles, basic human rights principles. Whether it's the optional protocol or a measure such as this, a private member's bill that seeks to make a change to the Criminal Code, I think that's an important step for Canada.

[Cheryl Hardcastle, NDP, Windsor—Tecumseh, ON]

Some of the people or some of the organizations that have been speaking up are women's groups.

In the research that you've done in preparing the legislation, why do you think we haven't used a term like torture in the Criminal Code yet? After all this time—and as my honourable colleague mentioned with regard to a victims bill of rights—why hasn't that been addressed in our legislative history?

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

In the definition of torture, it was recognized as a state crime. It has been understood that way for decades, from the beginning, when international legal norms around torture were established. The definition, as I said, has shifted. I think most of you are lawyers, so I don't have to tell you this. Sometimes it takes a while for law to catch up. That's why I think we don't have a crime along the lines of what I'm calling for written into the Criminal Code. I wouldn't have anything else to say other than that.

Perhaps I would. This is about allowing victims to speak. This is about listening to them. This is a problem in law. Perspective matters, but we need to shift the perspective sometimes and listen to those who have endured suffering. Perhaps on that basis law can change.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Next, we have Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Mr. Chair.

I would like to carry on talking about the international implications.

One of the government's concerns about the bill is that creating the offence of private torture could seriously weaken Canada's contribution to the global effort to prevent torture under the convention against torture. This seems to derive from the creation under this act of two categories of torture: state actors and private actors. Would you like to comment on that? Also, why do we have two kinds of torture in this act? Why can't we just encapsulate them into one category?

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

The way I would respond to that, Ron, is to say that if Canada would be in contravention of international legal obligations, then so, too, would Australia and France.

In terms of the second part of your question of why we have two charges and why we can't simply merge them, perhaps this is an issue the committee could look at. We do have established legislation in section 269.1 that deals with state offences. However, there is another aspect. Torture can take place in the private realm as well. With that in mind, I think it makes sense to look at this in a more complex way. The world is shaded in grey, as I said before. Torture can be a state crime, or it can take place in the private domain. That needs to be acknowledged, hence the view that we should have two understandings. If you wanted to merge them, perhaps this is something the committee could discuss.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Australia and France have a single definition of torture.

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

They do, yes.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I think the concern here is that two definitions of torture will cause problems for us internationally.

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

No, respectfully, I would disagree with you.

There is one definition of torture applied in Australia, and, I should be clear, it is the state of Queensland that has this in its law. As far as France goes, in its criminal code, it is merged. Again, they are not in contravention of their international legal obligations. No one has ever suggested that.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I am not suggesting it either, but I guess the government's position is that if we have two versions of torture, we would be in danger of being so.