Evidence of meeting #25 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was state.
A recording is available from Parliament.
Counsel, Human Rights Law Section, Department of Justice
Thank you.
I think that's right. The thing to remember is that the Convention against Torture sets out a comprehensive program to prevent a unique problem. It's not necessarily based solely on the seriousness of the offence of torture, but it's based on the fact that when you have serious crimes being committed either by the state or with the consent of the state, it's more likely there's going to be impunity for those crimes, because the people who commit them are going to have the protection of state actors.
The convention sets out a number of unique policy requirements that are meant to eliminate the problem of torture and prevent the impunity. That's why we have the universal jurisdiction, the obligations to prosecute or extradite. That's why we have the prohibition on the admission of these statements into evidence. Those all rely on the very specific definition of torture that's set out in article 1. Once we get into a zone of confusing or enacting multiple definitions of torture, the program that's set out in the convention starts to become incoherent and it becomes difficult to define which incidents of what is defined as torture require the kinds of actions that are set out throughout the convention.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
Now we're going to...I know it's a little unusual, but I think we have consent.
Mr. Fragiskatos, do you have any questions for the folks from Justice, given that you're here and you're the sponsor of the bill?
Liberal
Peter Fragiskatos Liberal London North Centre, ON
I would just add one point.
During Mr. Fraser's questioning, Mr. Piragoff read from the bill, but an amendment has been put forward which would change the substance of the bill and deal with the concerns that he was raising in that particular comment about a more rigid definition. I think that was the point that Mr. Piragoff raised. I would urge colleagues to look at the amendment again and discuss any thoughts and any ideas during clause-by-clause consideration.
Liberal
The Chair Liberal Anthony Housefather
Thank you.
We have time for a speed round of quick questions.
Go ahead, Mr. Fraser.
Liberal
Colin Fraser Liberal West Nova, NS
I have a brief question. It's been mentioned a couple of times that we're worried about the confusion. Couldn't we come up with some wording that would make it absolutely clear that this new section would be for non-state actors?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
Are you talking about the bill or the proposed amendment?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
The proposed amendment has brought back all kinds of language from 269.1 which Bill C-242 does not have. The proposed amendment has brought back in all kinds of attributes of state torture. It talks about consent, acquiescence, the defence of superior orders, and the exclusion of evidence. As Mr. Moore said, that is all part of a package that deals with state torture. Why would you want to bring all those attributes of state action into an offence that is supposed to be of domestic application?
As I said, it exacerbates the problem and creates more confusion, because now you have two offences with lots of attributes taken from the convention, stating that you must also punish acquiescence and consent, and you must exclude defence of superior orders, and you must exclude evidence. Why would you have to have that in a domestic offence? That's part of the international....
The proposed amendment actually makes things worse. Bill C-242 is starting to go in the right direction by creating a sui generis offence. It doesn't use many elements of 269.1. It uses a few. The most difficult part of the bill, not the proposed amendment, is that it will create two definitions and two offences of torture in the Criminal Code and both will be called torture. That then leads to all the problems that Ms. Wright had indicated.
As I said, Parliament is free to create an offence to directly address the intentional infliction of harm and the intentional causing of pain or suffering, but call it something else other than torture. If you feel that aggravated assault is not enough and you want something more denunciatory, either create a new offence to address exactly what you're trying to denounce or create an aggravated sentencing factor that specifies a reason why the judge should think about it at the higher end rather than the middle. If that's the case, it's a domestic offence.
Don't call it torture, because torture has a meaning in international law and don't confuse that meaning. It'll cause Global Affairs Canada problems when we're trying to hold other countries to account. When we say “torture” to other countries, we know what we mean by torture. It's not well, we mean this offence or we mean that offence. We mean the offence. Torture means what you signed when you signed the convention or we want you to sign the convention. That's the international definition. We don't want to say that there are lesser tortures and greater tortures. There's one offence of torture internationally and that's what Global Affairs wants to say to the rest of the world. That's why it's important not to have two offences of torture in name and not to have the elements of the offences so close together that they actually look like one another.
Liberal
The Chair Liberal Anthony Housefather
To jump in for one second, I think what happened was that in the original position it was advocated.... Mr. Fragiskatos understood it was coming from the Department of Justice. There was an argument that under international law, having two inconsistent definitions of torture created an international issue, so he tried to synchronize them. It sounds to me that that's not the issue. T
he issue for you, which obviously makes sense, is that you don't have the same elements in the bill where it's a state actor versus a non-state actor. Just taking 269.1 and replicating it, there will be provisions in there that are inconsistent with what a non-state actor would do. If from a policy point of view everybody agreed with that, going back to the original bill, which had different elements, and calling it a “private torturous act” or a different name that did not say “torture” would remove your issue with potential international confusion. Is that correct?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
That would help to rectify the concerns that Global Affairs Canada would have. Making the new offence not look like section 269.1 would be the best situation for us in terms of our lobbying efforts to make countries accountable for torture, that there's only one definition of torture in the world and that's in the convention and there are no other definitions of torture.
If you want to create other offences, call them something else.
Liberal
Conservative
Ted Falk Conservative Provencher, MB
I seek a point of clarification. Under our existing aggravated assault legislation, we can assign status, like dangerous offender or sexual offender, to individuals who are convicted. Under this private member's bill, would we forfeit the ability to assign people that status?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
I believe the bill actually has a provision which would say that this offence would qualify as a predicate offence for a dangerous offender status.
Liberal
Peter Fragiskatos Liberal London North Centre, ON
On the points raised with respect to international law, I want to emphasize to colleagues.... I respect the perspective put forward here today, absolutely, and thank you very much for coming in and commenting. I think it was a very reasonable and respectful dialogue.
The committee against torture has recognized that torture in the private realm qualifies as torture. That's absolutely critical to understand. France has taken back the concerns that were raised, that happened in 2013, and acted upon that. The law does not compromise France's international legal obligations in any sense.
Finally, with respect to the apparent concerns raised by Global Affairs Canada, subsequent to appearing before the committee last week, I followed up and consulted with Global Affairs Canada. They have no problem with the amendment that I put forward. That is my understanding at this point. They might have had a problem with the original bill, but they have no problem with the amendment that I've put forward.
Liberal
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
I've no comment.
Our discussion with Global Affairs Canada is what I reiterated to you, their concerns about having two offences of torture. There's only one offence of torture internationally and there should only be one offence of torture and we should not be having multiple offences of torture.
As I said, the closer you create a new offence with elements that look like 269.1, you start to raise the question as to whether we are just starting to skirt our obligations under subsection 269.1 by creating something that looks like subsection 269.1, but is subsection 269.1-like. That's what we don't want to create. That's why I said if Parliament wants to address the problem of intentional infliction of physical or mental pain or suffering to deal with the situation of serious domestic violence, to deal with the situation where people are repetitively abused intentionally, then Parliament can do so. But one should not hide that and confuse the existing offence of torture in subsection 269.1.
Liberal
Peter Fragiskatos Liberal London North Centre, ON
I suppose, Mr. Chair, it comes down to when those conversations took place. I spoke with Global Affairs Canada on Friday.
Liberal
The Chair Liberal Anthony Housefather
I understand, and if Global Affairs Canada wants to come forward, we would be happy to hear their position, I think. Maybe the clerk could reach out to them so they can clarify that for Thursday.
Ms. Khalid, did you have a short question?
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
I think you have generally answered it, but I will again clarify. If this crime name were changed, would your department be supportive of it as it stands, just with a different name?
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
The name change is one aspect. The other aspect is not to incorporate a number of elements of subsection 269.1 that really only apply to state torture, and then try to apply it in the private conduct realm.
Liberal
The Chair Liberal Anthony Housefather
As I understand it now, I think I'm clear at least from Justice's perspective. They prefer the original, not the amendment, and they want to change the name in the original, should we decide to actually proceed with anything to do with that from a policy perspective.
I think that is your position. Is that correct?
Assistant Deputy Minister, Public Law Sector, Department of Justice
To be clear, we're not here to put forward a position, so we're not speaking on behalf of the minister or the department. We're here to answer questions.
Senior Assistant Deputy Minister, Policy Sector, Department of Justice
Also we're here to provide the committee with options to consider, but we have no position to put forward or preference, because we make recommendations to the minister, as I indicated to Mr. Nicholson. When he was minister, I made recommendations to him. Now that he's an MP, I do not make recommendations to Mr. Nicholson.
