Justice Committee on Sept. 27th, 2016

[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.

[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...?

[Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice]

It depends on the nature of the question. Either Ms. Wright or I will take the lead on the question.

[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?

[Donald Piragoff]

I think Mr. Casey in the second reading speech gave quite a long list of offences that could apply to this type of conduct. The one most applicable would be aggravated assault, which is assault causing maiming, wounding, etc.

In terms of legally, there is no gap. The conduct can be prosecuted. From what I understand from the sponsor of the bill, those who support the bill wish to actually denounce a specific type of aggravated assault, and that is the kind where there is actually an intentional commission of causing serious pain or suffering, and not just simply the intentional causation of assault which causes maiming or suffering, but actually that the injury be intentional, that there be an intentional assault, plus an intentional causing of pain or suffering.

Of course, the current law doesn't require intent on both sides. One simply needs to intend the assault. If the assault is to such an extent that it causes maiming or wounding because the person is reckless as to the consequences, that is sufficient under the law.

It's more of a denunciatory purpose, I understand, in this bill, as opposed to actually plugging a real legal gap.

[Ted Falk, Conservative, Provencher, MB]

Okay. From the research that I've conducted and the reading, it would appear that the current legislation that we have before us as far as aggravated sexual assault is concerned, and kidnapping which would also fall under the purview of this law, I suppose, if it were ever to be enacted, actually carries with it minimum mandatory sentences which this particular private member's bill doesn't address at all. What would your thoughts be on that?

[Donald Piragoff]

Some offences, such as you have mentioned, aggravated sexual assault, in certain circumstances do carry a mandatory minimum penalty. Aggravated sexual assault, aggravated assault, kidnapping would all be offences applicable to the type of conduct that the bill is trying to address.

[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?

[Donald Piragoff]

Let me turn that question around. If this offence were to exist, and it's called “inflicting torture”, and there is an existing offence in the Criminal Code called “torture“, which torture are you talking about if a person is prosecuted?

If you give the prosecutor one of two offences to prosecute, the existing torture offence, which is about state-sponsored torture, or this inflicting torture offence, and both are called torture, then it can cause two problems.

If there is a situation where there are Canadian officials, either police officers in Canada or military personnel outside of Canada, who inflict torture and should be prosecuted under existing section 269.1 on the basis that it's state-sponsored torture because they are officials, then the prosecutor could say, “I don't want to have to prove all those elements of the offence, so I'll instead prosecute this other offence, this new offence.”

In that case, we would not be abiding by our international obligations, because the international obligation is that we should be holding our officials accountable under international law.

The existing offence of torture is not an offence about causing pain and suffering; it's to ensure that states abide by their obligations to protect their citizens and other people on their territory, and to ensure that either they or their officials do not commit serious pain or injury to other individuals. It's not necessarily protecting the individual, it's an obligation to go after the state.

It's important that if that conduct meets 269.1, then it should be prosecuted as such, and that there not be some other offence called torture that one could prosecute instead, which would be considered to be a lesser offence. Then the question is, are we abiding by our international obligations if the prosecutor were to prosecute the lesser offence as opposed to the offence that complies with the convention?

It also causes all kinds of confusion with respect to our international obligations, as to whether we are abiding and how we implement. It also causes confusion to other countries that may be trying to find ways to get out of the convention by saying that if other countries have lesser offences of torture, then why can't they have lesser offences of torture, so then they won't have to prosecute their officials directly for the torture they commit in certain countries.

Mr. Wright can speak more to the international implications, if you'd like.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. I do want to note that the proposer of the bill has come forward with a proposed amendment that would make the definition in 269.1 and the definition of this type of torture identical, which I think may remedy those problems.

We'll pass it on to Mr. Bittle.

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

I'll follow up, Mr. Chair, on that question. Have you had an opportunity to see the proposed amendment? Does that address your concern?

[Donald Piragoff]

It would probably exacerbate the concern because the proposed amendment simply removes the word “official”, but all the other elements of section 269.1, at a state torture offence, are reproduced in the proposed amendment. Now one is really confused as to what exactly Canada is trying to achieve here by simply taking away the word “official”.

France did something similar by going with an offence that applied equally to both officials and non-officials, and they've been criticized by the committee on torture in the sense that they've now confused the situation as to when state torture has been charged and prosecuted and when it has not been prosecuted.

If the committee wants to address the situation of intentional infliction of serious bodily harm or intentional mental or physical suffering in situations that do not involve the state, it may be advisable to try to avoid any of the attributes of the state torture offence as much as possible. There are things in the state torture offence that only apply and make sense if one is dealing with state torture; for example, the notion that the conduct be at the acquiescence or consent of another person. That makes sense in the state torture because you're trying to somehow link a private person's misconduct to the state, and the way you link it to the state is that a state official has acquiesced or consented to somebody else doing something. So it brings the state back.

Also, the provision that deals with superior orders is no defence. It's not a defence that you followed orders. That only makes sense in the hierarchical state system where you have a hierarchical chain of command as in the military or the police or government. It makes no sense to have that in a private offence.

The proposed amendment actually brings the two offences even closer together and creates more confusion. It's better to try to keep the two offences separate or apart as much as possible in the definition, and also don't call both torture. If you're going to create a new offence, call it something else. Call it grievous aggravated assault or torturous aggravated assault, but to call it torture really confuses both the law domestically, but more importantly, our position internationally.

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

You mentioned there was criticism of France. Can you provide the committee who proffered that criticism?

[Glenn Gilmour, Counsel, Criminal Law Policy Section, Department of Justice]

Yes, under the commitments made by states to combat torture, states are required to report on a periodic basis to the United Nations Convention against Torture. Sessions are held by the UN Committee against Torture when they examine a state party's report, and at the end, they issue the concluding observations on that particular state party.

In 2010 in particular, the UN Committee against Torture was critical of the fact that France has just one general definition of torture on the basis that it was unclear whether or not the definition of torture contained therein the specific definition of torture that's found in the United Nations Convention against Torture. They have suggested to France that they, presumably in addition to the general offence of torture, have a specific offence of state torture where the definition is modelled precisely on the definition of torture found in the United Nations Convention against Torture.

They were critical of a country that had in its domestic regime just the mention of the word “torture”—there was no definition of the word—and they wanted to ensure that state torture was distinguished from other kinds of acts that France wanted to call torture. This would certainly help in reporting back to the United Nations Committee against Torture on information that the state has with regard to how many instances of torture, as defined by the United Nations Convention against Torture, have occurred during the reporting period.

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

Is it the position of the Government of Canada that France, the United States, and Australia—Australia and the United States have jurisdictions that have similar pieces of legislation—are not in compliance with international obligations?

[Glenn Gilmour]

That's not the position we're putting forward. The position we're putting forward here is that there be just one general offence of torture, where everything is called torture under one offence. As I recall, during the committee hearings last week, there was some suggestion that possibly one amendment that could be made was simply to get rid of the term “state official” in section 269.1. At least, that question was asked. It remained unclear to me whether or not that was something that was being considered.

[The Chair, Liberal, Anthony Housefather]

The proposal from the sponsor, just to be clear so that we all have that for the future rounds of questions, is to have two separate sections. One would be to continue to have the same section 269.1 and add a new section 268.1, that would have the non-state actors; remove the requirement that it be a state actor. You would have a separate definition.

[Glenn Gilmour]

Thank you for that clarification.

[The Chair, Liberal, Anthony Housefather]

We will move on to Mr. Dusseault now.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

I would like to thank the witnesses for being here today.

Given the new definition of torture committed by a non-state entity, and since there is a burden of proof to be established before a judge in order to get a conviction, do you think the risk of not getting a conviction is a problem?

[Donald Piragoff]

Police and prosecutors are going to try to take what I would call the quickest direct route to a conviction, and the quickest direct route to a conviction is going to be a charge of aggravated assault. All you have to prove is that there was an intentional commission of assault and the person was reckless as to the consequences. You don't have to prove that the person actually intended the consequences, that there was severe mental pain or suffering. You only have to simply prove the person intended to beat the person up and was reckless as to the consequences. That would be the quickest direct route to a conviction, and that's what most police would investigate, and most prosecutors would charge.

That's why I said earlier it's confusing to have another offence which says any person who inflicts torture will have two torture offences because, one, that creates confusion. Two, the Chair indicated that the proposed amendment, which is not on the table yet, understand, would simply replicate all of 269.1 except for the word “official”.

The concern that exists with respect to that type of procedure is that there still is a lot of other indicia in that proposed amendment which only refer to states. Words like “at the consent”, ”acquiescence of”, that's language that refers to states; it's how to make a state actor to maybe acquiesce to someone else's torture who is not a state official and make the state responsible. To actually talk about it's not a defence of superiority only makes sense in the state context. Why would you put that in a provision that deals with private misconduct?

Also, the provision that talks about evidence being inadmissible, we don't have the provision...any other assault provision in the Criminal Code for assault or misconduct via misconduct by other individuals. It's there particularly for the state situation, because you do not want the state, on one hand, to abuse a person and then turn around and use the evidence they obtained from the abuse against the person. That's not the same situation in a private context, because we're not talking about obtaining evidence and then the person prosecuting the—

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you.

[Donald Piragoff]

There are a number of indicia that even in the proposed amendment really don't make any sense for a private offence, and only make sense for a state-sponsored offence.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you.

Considering this new definition of the offence set out in the bill, would you say that the chances of the Crown deciding to prosecute for torture are slim to non-existent?

[Donald Piragoff]

If it was a normal situation, I would think most police officers would take the more direct route. But if you had a situation where a Canadian police officer or military person or some other Canadian official actually caused intentional and serious bodily harm and intentional pain or suffering, Canada would want that prosecution to be conducted under section 269.1 in compliance with our obligations. We would not want to prosecute some other offence also called torture, which might be considered a lesser crime. That would signal to our allies and other countries which maybe are not our allies which actually torture people that it's all right to have some lesser offence and call it torture. We're trying to hold people's feet to the fire and get them to abide by their international obligations, to implement the torture convention definition, to implement the offence, and to prosecute it. Don't prosecute something else so that you don't have to prosecute your officials and label them as torturers.