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.