Justice Committee on Sept. 22nd, 2016

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

I don't think so. You would have to look at the committee against torture report, in “General Comment No. 2”, where acts of torture in the private realm are acknowledged as crimes. The committee has never suggested that if there are two laws, that would somehow compromise the obligations of a state.

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

I can fully accept that private acts of torture should be recognized as torture, but the definitions of torture are different in these cases. Apparently, it seems that the definition of private torture is more restrictive, more narrow.

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

I am glad you asked that question. I have brought copies that I would be glad to distribute at the conclusion of my remarks.

It is a suggested change, and it would line up the definitions. The only difference would be that in section 269.1 there is mention of officials, which obviously acknowledges the state element. The law that I am calling for would simply take out the word “official” and generalize it, so individual citizens would be liable for punishment if they carry out torture in the private realm.

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

Thank you.

There is also a provision for extraterritoriality in the bill. I am wondering why you included that and whether it is important. I am also wondering whether someone tried in a foreign country for an offence could also be tried in Canada for the same offence, whether double jeopardy could apply in that case.

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

No, if you look at that, you will see that it doesn't deviate from section 269.1. I consulted with experts in the law and a parliamentary counsel. This is a law that would apply to Canada, and if there are further concerns around that, then it is up to the committee to respectfully look into that and make suggested changes.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. McKinnon.

Before we move to the second round, if my colleagues would permit me, I'd like to try to tie up something that I think Mr. Falk was asking, and has come out a couple of times.

Mr. Fragiskatos, in terms of adding this provision to the Criminal Code, is there a class of people you believe could be tried under the torture provision you're proposing to add that could not otherwise be tried under an existing provision of the Criminal Code? Could there be somebody who we now cannot prosecute for their actions of torture, but who, as a result of adding this, could be prosecuted?

Secondly, I understand the whole issue of victims that you have brought up, and the feelings of victims, but given that torture is a harder-to-prove offence than assault, do you believe prosecutors would actually use the offence of torture?

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

I know that they would use it because I have spoken to crown attorneys who agree very much with this suggested change. I see no difficulty in that regard.

[The Chair, Liberal, Anthony Housefather]

Would there be anybody who could be prosecuted under this offence who could not otherwise be prosecuted under an existing offence?

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

Well, they could be prosecuted under aggravated assault or kidnapping, but as I said before, that does not match with the experience of those who have endured the violence.

[The Chair, Liberal, Anthony Housefather]

I understand.

We will now move to the second round of questioning, and we're going to start with Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

Thank you, Mr. Fragiskatos for your testimony today and your excellent presentation. I really appreciate the work that you have put into this and your thoughtfulness.

I want to pick up on something that you were just discussing with the chair. My question regards aggravated assault. The way it's structured now, it seems as though torture might be a higher threshold to meet than the existing offence of aggravated assault, based on what you're saying.

Would you consider that aggravated assault would be an included offence with regard to torture? Would you say that somebody could be charged both with torture as you see it in the private realm, as well as aggravated assault, for the same transgression?

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

Individuals are charged in multiple ways. That's common. But torture is a higher threshold of violence. We're speaking about a very specific crime. It's admittedly and thankfully a relatively rare occurrence, but when it happens, we ought to acknowledge that it has taken place.

[Colin Fraser, Liberal, West Nova, NS]

Do you think somebody could be charged both under section 268 and the new proposed section 268.1?

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

I'm not a criminal lawyer; however, individuals are charged with multiple offences on a regular basis, so yes, they could be charged with both. At least, that's my understanding. That's my reading of the law. However, it's not aggravated assault. What they've been through is not aggravated assault; it is torture.

I take my cue from the victims' experience of this. I think we ought to call crimes what they are. I know that there are concerns. Mr. McKinnon raised some concerns about our international legal obligations as well.

Respectful disagreements happen all the time between members of Parliament. Colleagues and folks around the table could have issues with the bill. It's up to the committee to examine that in good faith, and I know you will. I've put forward my view on this.

To get back to what you were saying, Mr. Fraser, I think that torture committed in the private realm is a relatively rare offence that could be applied, and would mirror the situation in a much more just way, legally speaking.

[Colin Fraser, Liberal, West Nova, NS]

Okay. Picking up on that, looking at the past cases for example, these folks were charged with aggravated assault in the examples that you gave, I presume.

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

There was a charge of aggravated assault applied. I could go through the examples again.

[Colin Fraser, Liberal, West Nova, NS]

No, you don't need to do that, but you mentioned the prolonged aspect and the fact that the judges were mentioning torture but they were not able to apply it.

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

They were not able to apply the term, formally.

[Colin Fraser, Liberal, West Nova, NS]

You weren't satisfied, by the sounds of it, with the sentencing result.

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

No, and I don't think anybody would be who believes.... I think that the sentences applied were not long enough. Judges who wanted to apply the term “torture”, and did so in their reasoning, could not formally do so because there wasn't an offence in the Criminal Code that would allow them to do that.

[Colin Fraser, Liberal, West Nova, NS]

I want to move on to what was talked about earlier with the experiences of other countries. I appreciate that you said that in Australia, in the state of Queensland, they have a torture provision.

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

Yes.

[Colin Fraser, Liberal, West Nova, NS]

I assume this is a rare charge and that it would be a fairly rare thing. Do you know any specifics on how it has worked there, how many people have been charged with torture, or what the conviction rate is, for example?

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

As far as conviction rates, no, I can't give you that. I've consulted on that with academics based in Australia who have said this has not compromised Australia's international legal obligations. It has been applied. The offence has been used. It has helped to acknowledge the suffering of individuals who have endured great violence. The same is true for the French example.

[Colin Fraser, Liberal, West Nova, NS]

With regard to the victims, in some of these circumstances I would imagine that it occurs within the realm of domestic violence. Could you talk a little bit about how you see the bill addressing issues of domestic violence, and what you think it will do to help the public perception of preventing domestic violence?