Justice Committee on Sept. 27th, 2016

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

My next question is more technical.

If the bill is passed, could the Crown press charges for both aggravated assault and torture?

Moreover, if the person is found not guilty of torture, for instance, could they be found guilty of aggravated assault?

[Donald Piragoff]

You can always charge a number of counts on an indictment. It depends on the evidence and the seriousness of the charge. It is possible to charge more than one offence on an indictment.

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

Okay.

Do I still have some time left, Mr. Chair?

[The Chair, Liberal, Anthony Housefather]

You have enough time for another brief question.

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

As I understand it, you think it would not be ideal to have the same definition for state torture and non-state torture. I can imagine this could cause some confusion among our international partners. France, which has been the subject of criticism, is one example.

Would there be a way of doing it? For example, it might perhaps not be the exact definition chosen by the bill's sponsor. We could make a distinction. It is the word “torture” that is problematic. Perhaps we should consider another term for this new offence.

[Laurie Wright, Assistant Deputy Minister, Public Law Sector, Department of Justice]

I think it's probably a joint answer between the two of us.

Certainly, the origin of the Convention against Torture was to recognize that there's something particularly heinous about a state and its officials undertaking deliberate infliction of suffering on citizens or non-citizens in order to dissuade them from certain political ends, to get information out of them, those kinds of things.

There certainly was an element around recognizing the pain and suffering being suffered, but the direction was toward calling states to account for bringing the power of the state in inflicting these kinds of injuries, both mental and physical, against individuals.

Our colleagues at Global Affairs are very active in the international community in terms of working with partners and others to make sure that this basic international standard is being respected. From the perspective of international law and international relations, it's certainly far preferable to keep the torture definition related to where there is state activity involved in it.

I would defer to Don on the question of different ways that this particular kind of deliberate causing of pain and suffering by a private actor could be accommodated in the Criminal Code .

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're going to move now to Mr. McKinnon.

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

You speak of needing this existing differentiation in order to hold states to account, but states are not charged under the current act, only individuals are. So I'm not sure how that holds states to account.

I'm also wondering if there have been any convictions under section 269.1 in Canada.

[Laurie Wright]

The way in which states are called to account under the Convention against Torture is that the convention establishes a committee, and states are required to appear before the committee on a periodic basis to report to the committee as to whether their domestic laws and practices bring the state into conformity with the convention. There is a public airing before the committee of every state that is a party to the convention on how they're doing with the compliance.

There is also what's called an optional protocol to the convention. Not everybody who is a party to the convention has signed up for the optional protocol, but those who have are required to allow international investigators to visit their places of detention, for example, prisons and penitentiaries, in order to make sure the kinds of things that would meet the torture definition are not occurring.

Dan, I don't know if there's anything you wanted to add to that.

[Dan Moore, Counsel, Human Rights Law Section, Department of Justice]

Under the Convention against Torture, states have international responsibilities and obligations to take measures to prevent torture. The direct criminalization of torture by individuals is an important part of states' obligations to ensure that we prevent and punish for torture. States are held accountable on a higher level through the reporting process and through discussion about how we're implementing that.

Individual accountability, especially for state actors, is a core part of the convention. We see section 269.1 ensuring that individuals, especially those with ties to the state, have responsibility and criminal accountability if they engage in acts that meet the article on definition of torture under the convention.

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

You say that 269.1 is for individuals with ties to the state. It seems to me that it only applies to those with ties to the state and not private individuals at all.

[Laurie Wright]

It could apply to someone who is under the direction of a state official. The definition is such that the primary target is state officials, but state officials cannot get themselves out of the situation by saying that they told somebody else to do it. Similarly, somebody who accepts the direction of a state official to commit these kinds of acts could be charged and it could be argued that they fall under it.

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

That would still be a tie to the state.

Do we have any data on Canadian convictions?

[Dan Moore]

We are not aware of any convictions under this provision at the current time.

I think our view of the effectiveness of the provision is based on the message it sends and its clear denunciation within the Criminal Code of the heinous crime of torture.

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

Okay.

I believe I heard testimony that if there are two charges, then prosecutors or law enforcement officials would choose the one that's easier to prove. It seems to me that would be the case without a second charge of torture and with just aggravated assault. Why would people choose to prosecute under state-sanctioned torture when they could prosecute under aggravated assault? I wonder if part of that answer might be that there is extraterritoriality regarding aggravated assault.

[Donald Piragoff]

The issue of extraterritoriality applies only to the state torture, because the convention is trying to create an international regime. If the state does not abide by its obligations, does not prosecute someone who committed torture in its territory, and that person comes to, say, Canada, then Canada can undertake the prosecution and ensure that internationally there's no impunity. That is why within the convention there is this element of extraterritoriality.

For private conduct, we don't have extraterritorial jurisdiction, except in limited circumstances where there is an international treaty that requires it, or there's clearly a customary international law with a requirement or permission for a state to have that.

If I assault someone as a private individual in France and I come back to Canada, then I can't be prosecuted for assaulting someone in France. However, if an official in a foreign country tortures someone, and that official is not prosecuted in that country, then other countries are entitled to step into the shoes of that country and say that just because they are going to grant impunity doesn't mean the international community will grant impunity.

There are significant differences between the levels of conduct. Domestic conduct is about protecting the victim. It's all about saying that this person suffered harm and that we want to protect that person from harm. The international offence says that yes, we want to protect people from harm, but we also want to hold states accountable in that they should not let this happen, and that if they do let this happen, we're still going to ensure that justice is done by ensuring that we will prosecute. It's serving two different purposes.

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

It is certainly that. However, for actions performed in Canada, for example, would it not be more likely that charges would be laid under aggravated assault than state-sanctioned torture?

[Donald Piragoff]

That would be a decision of the prosecutor.

Clearly as a policy statement, if it involved officials, the Parliament of Canada has indicated in order to abide by our obligations, we'd prefer that the prosecutors would prosecute under section 269.1, but again, it really depends on the question of evidence. Does the prosecutor have enough evidence to satisfy all of those elements of section 269.1? There are a lot of elements there, all those purposes that you have to prove, for example. It's not simply causing severe pain or suffering; they have to do it for certain purposes, so you have to get the evidence that the purpose existed. If you don't have a confession from the accused, it's difficult to establish purposes.

[The Chair, Liberal, Anthony Housefather]

Thank you.

We will move on to the second round of questions now.

Mr. Fraser, please go ahead.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

Thank you very much for your presence today and for answering our questions.

I want to pick up on something that was discussed earlier, which is that one can be charged with more than one offence on an indictment. I presume from that you're saying somebody could be charged with aggravated assault and this proposed private torture. Is that correct?

[Donald Piragoff]

Yes, they could.

[Colin Fraser, Liberal, West Nova, NS]

Help me to understand then the difficulty you would have that prosecutors would go with the aggravated assault, for example. Why wouldn't they try to prosecute on both?

[Donald Piragoff]

For aggravated assault, the prosecutor would have to prove that the assault was intentionally committed and that the consequences were simply reckless, that they were reckless that the person was wounded, maimed, or disfigured. That's what would have to be proven.

Under the offence in the bill, first, you have to show a purpose. If it were for the purpose of intimidating or coercing that person, for what purpose? That's one more element you'd have to try to get evidence of. Also, the definition of torture is not just simply that there was maiming, but there has to have been severe, prolonged pain or suffering, whether physical or mental, and it was intentionally and repeatedly inflicted on a person. For aggravated assault you don't have to prove that the consequences, that the harm was intentional; you just have to prove that the assault was intentional. Under this offence you have to prove both that the person intended the conduct and intended the consequences; so, it's more to prove.

[Colin Fraser, Liberal, West Nova, NS]

Okay, it would be harder to prove, but it wouldn't prevent the prosecution from bringing both charges. If they don't get it on the private torture, they may get it on the aggravated assault.

[Donald Piragoff]

That's true.