Justice Committee on Sept. 27th, 2016

[Colin Fraser, Liberal, West Nova, NS]

What are your comments with respect to the principle in Kienapple? That's the 1975 Supreme Court of Canada decision that said you cannot be convicted of two offences where they both arise out of substantially the same facts. Wouldn't that apply and you wouldn't be able to convict on both? If you convicted on private torture, then you couldn't do aggravated assault. Isn't that true?

[Donald Piragoff]

That's true. You could only register one conviction, not two convictions. You could be found guilty of both offences, but you could have a conviction only registered with respect to one of them.

[Colin Fraser, Liberal, West Nova, NS]

Doesn't that respond to your concern that prosecutors or police officers would be turning their minds to just aggravated assault because it's too hard to prove private torture, or it's a higher burden? How does that happen if the system would allow for both to proceed? If you don't get on the higher threshold, at least you're getting, in effect, the lesser included offence.

[Donald Piragoff]

No, the concern that is expressed in particular by officials at Global Affairs Canada is that if you have another offence called torture and you prosecute that as torture, then how are we abiding by our obligations to prosecute torture when we already have section 269.1 which says that torture is defined in section 269.1, and we have another offence in proposed new section 268.1 which says inflicting torture is torture? What torture are you talking about? How do you go to the committee and say, “Well, no, we didn't prosecute the person for torture. We prosecuted the person for torture.” That's why I said earlier in my comments that if you want to make a domestic offence that addresses the intentional causation of pain or suffering as a consequence as well as the intentional assault, Parliament is free to do that. It's a policy issue.

What we're saying is it would be much clearer not to call that offence torture and not to use the word “torture” anywhere in that offence, so it doesn't cause confusion with section 269.1. It would have been much better to call it grievous aggravated assault, which also requires an intentional element to cause the consequences and not just simply to cause the harm.

[Colin Fraser, Liberal, West Nova, NS]

Would you be satisfied, then, if it was changed from “torture” to “grievous aggravated assault”? Would that answer all your concerns?

[Donald Piragoff]

That would help answer the concerns with respect to not confusing this with state torture, because there would only be one torture offence, and that would be in 269.1. If Parliament wishes to create another offence that is more serious in terms of its denunciation than aggravated assault, it can do so. As I said, if Parliament wants to say that it wants to make an offence of intentionally causing conduct and intentionally causing serious pain and suffering, Parliament can do that. The existing law of the land simply says you intentionally caused the conduct and if you're reckless as to the consequences, you're guilty. That's a choice for Parliament.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

We heard in the presentation from the proposer of the bill that victims may be more willing to come forward if you're actually acknowledging what had taken place, you're actually acknowledging that this set of circumstances may, in fact, have been torture. What can you say about the willingness of victims to come forward if this bill was passed? Do you think it would improve the willingness?

[Donald Piragoff]

I would just be guessing. I can't say whether a more serious offence is going to make victims come forward. We have assault. We have sexual assault. We have aggravated sexual assault. I don't think the fact that we have three types of sexual assault makes victims more willing to come forward. There are other factors at play as to whether people are willing to want to go to court, want to go to the police, and want to go into a public courtroom and talk about very intimate and personal things that happened to them. I don't think those deal necessarily with the offence, because other things are at play that motivate victims to testify or not to testify.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, sir.

Those are my questions, thanks.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you to the witnesses.

I want to ask questions related to Canada's international obligations under the UN Convention against Torture. Certainly, when I look at, for example, proposed section 268.1, it makes sense to me to make the argument that that could undercut our international obligations in the sense that it is a narrower definition than the definition provided in section 269.1 of the Criminal Code and therefore could undermine or compromise the exclusive jurisdiction of section 269.1 with respect to state torture.

Mr. Fragiskatos has put forward an amendment that basically replicates section 269.1 in non-state circumstances. I still am not fully clear as to how that undercuts Canada's international obligations or the Convention against Torture to simply apply the same test, the same standard, but to expand it to non-state circumstances.

I do understand your point about the appropriateness of that test or the problems with that test in non-state circumstances, but just from the standpoint of undercutting or compromising our commitment to the UN Convention against Torture, I'm still a little unclear. Perhaps you could elaborate.

[Laurie Wright]

Sure. Thank you very much for your question.

I think the first thing to say is that no one here is suggesting that having a separate offence for torture with respect to private actors somehow puts us not in conformity with our Convention against Torture obligations. As long as the existing offence stays as it is, and as long as we continue to undertake the actions that we are to take in order to prevent and discourage torture, we are domestically in conformity.

I would say that not every country around the world that engages in torture prefers to be held, or to have its officials held, to the very high standard of conduct that's required in the convention. The international concern is that there would be from some avenues an argument made that, if there is more than one way of defining torture, they could also water down their own provisions in terms of what they're criminalizing, and therefore not actually be meeting their obligations. That's part of it.

The other part is, as the committee against torture undertakes its functions to ask questions of states, one of the things it likes to rely on is statistics that come in, for example, about the times that torture has been charged and convicted. If you have more than one torture offence, it can make things difficult in terms of the clarity of the information that's being put forward internationally about what kind of conduct is being charged and prosecuted.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

But here we have, with 269.1 and proposed 269.2 the same definition, the same test, the same punishment. The evidentiary basis of obtaining a conviction would be the same. The only distinction would be whether it was done by an official or whether it was done by a private individual. That would seem to address at least those concerns about inconsistencies in Canada's international obligations with respect to the convention against torture, leaving aside the issues of the appropriateness, questions about the test, and how practically that could be used in a domestic context.

[Laurie Wright]

We would not be going against our obligations under the convention by creating a second torture offence that applied only to private actors. It's less a question around our legal obligations and whether we're fulfilling them. It's more at the policy level with the object of the convention being around stopping states from torturing. What we would like to see as an international position is a consistency in the definition that allows other states where torture does occur much more regularly than in Canada to be held to account for those kinds of offences.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Could you comment on, for example, eliminating subsection 269.1 and simply having one section that applies both to state and non-state officials?

[Donald Piragoff]

That's what France did, and they were criticized by the committee for having a general offence that applied to both situations. The committee said that if there's a conviction, they don't know whether the conviction was of a person who fits under the convention or does not fit under the convention, so now they've muddied the waters. They've convicted someone of torture, but we really don't know if it was state torture or not. That's the point that Ms. Wright is trying to get across. The committee wants to know, if there was state torture, that there was state torture and that it was prosecuted as state torture, not prosecuted as something else to hide the fact that there was state involvement.

If you have an offence that you can prosecute and call torture and not have to prove the state's involvement, you could say you had a prosecution and that there was no state involvement, because the prosecutor never proved state involvement or it was never charged that there was state involvement. You see, that's the issue.

It's not a direct violation of our international obligations. It's a way of skirting them if countries have other ways to say they'll deal with this situation by other means, as opposed to our holding countries' feet to the fire and saying that, if there is state-sponsored torture, deal with it as state-sponsored torture and don't deal with it as some lesser offence. If we start creating lesser offences, then that gives an excuse to other countries to say that Canada has lesser offences, so they can have lesser offences too.

That's the issue at the international level, and that's the concern of Global Affairs Canada.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Khalid, go ahead.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you very much for coming in today and sharing your views with us.

I want to talk a bit about the actual intent behind this proposed law. We heard last week from the sponsor and some witnesses that the intent behind this proposed legislation is to give the victims a name as to what they have suffered and what their experience was.

Do you think the proposed law as it stands meets that intent of providing victims with having that experience named, and having the impact of the word “torture” applied to their experience?

[Donald Piragoff]

As I said at the beginning in response to the first question, there is no gap in the law. If there is a gap, it is a public relations denunciatory gap, to say that we want to denounce another type of conduct, which is already covered legally by the law, but we want to give more denunciation for conduct where there are two intents, an intent to cause the conduct and an intent to cause the severe pain and suffering.

Parliament can do that. Parliament can call that anything it wants. As opposed to aggravated assault, it could call it grievous aggravated assault, but once it calls it torture, that causes all the complications we have been trying to explain with respect to the implications of 269.1, our international obligations, and the global fight against torture. By having confusion of numerous offences called torture, it gives other states the ability to say, “You know what, we'll do the same thing. We'll have a confusing law, and we can skirt our international obligations because we won't have to prosecute our officials for state torture. We'll prosecute them for something else, and then we won't have to announce to the world that we had state torture in our country.”

As I said, if Parliament wants to create a new offence, it is the freedom of Parliament to do so, but Parliament should not call it torture because that has implications. We already have an offence of torture. Call it something else.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Just to clarify, what you are saying is that the name does have an impact on victims who go through this experience. The negative of that would be to confuse the definition of torture internationally.

[Donald Piragoff]

Yes. As I said, call it grievous aggravated assault, or call it torturous assault, but don't call it torture, because we already have an offence of torture, which is understood and well defined in international law. We should not be creating any doubts that there is only one definition of torture in the world internationally, and that is the one in 269.1.

Parliament is free to create other offences, but it should not create any confusion by creating another offence that somehow overlaps with torture or is a lesser form of torture.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Continuing with victim impact, we heard testimony last week as well that there are a lot of people who experience torture but don't come forward to press charges because there is no charge for what they have gone through. In that way, the justice system is not available to them in getting justice for what they have undergone.

Do you agree with that?

[Donald Piragoff]

As I said, there are existing offences that apply already. Aggravated assault applies, and aggravated sexual assault applies. If Parliament wants to create an offence of intentional infliction of mental pain or suffering or physical pain or suffering, Parliament is free to do so, but don't confuse it with the existing offence of torture.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Would this proposed bill, as it stands right now, create more accessibility to the justice system for victims who would otherwise not come forward?

[Donald Piragoff]

As I indicated earlier, we have an offence of sexual assault, and we have an offence of aggravated sexual assault. Whether we have three levels of sexual assault or four levels of sexual assault, the issue as to why victims don't come forward isn't the name of the offence or the elements of the offence. There are other things at play as to whether victims are willing to come forward to talk about very private matters that happened to them.

I think what the victims are saying is that they would really like to have an offence that actually describes exactly what happened to them; that is, the maiming, the wounding wasn't just recklessly caused to us, but it was intentionally inflicted on us. That's what they want.

As I said, Parliament is free to craft that type of offence, but I am not sure that's what this bill does, because this bill tries to create a second offence of torture, as opposed to creating a new offence of intentional infliction of pain or suffering on an individual.