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—