Justice Committee on Sept. 27th, 2016

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

Do I have time for—

[The Chair, Liberal, Anthony Housefather]

—one more quick question? Yes.

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

We know that domestic violence is something that often women, men, or children can relate to being a torturous way of living.

How do you think this proposed bill would impact those who have gone through domestic violence?

[Donald Piragoff]

I'm not sure that it would.

We have aggravated sexual assault. Does that make victims feel better than simply having one offence of sexual assault?

The issue, as I said in my previous answer, is that if victims want a certain recognition that intentional infliction of harm is different from a reckless infliction of harm, then Parliament is free to create a new offence of intentionally causing assault which intentionally causes physical or mental harm.

In creating that offence, they should not confuse it with the offence of torture, which has a well-defined understanding in international law.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much for coming here and setting that out.

I have one quick question. We had a discussion at the last meeting about the penalties associated with aggravated assault, with life imprisonment.

Mr. Piragoff, on this possible new offence of grievous aggravated assault, which is the name that you suggested here, what would you suggest would be the penalty for that?

[Donald Piragoff]

I have no suggestion, Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Well, if aggravated assault is 14 years, and if this, in your words, is a more grievous crime, would we have to increase the penalty at some—?

[Donald Piragoff]

That's one avenue. Another avenue is to simply put an aggravating circumstance into the existing offence of aggravated assault, such that as a sentencing factor, if the harm that was caused was intentionally caused and not just recklessly caused, that could be an aggravating factor for the sentence which would be imposed to the existing offence of aggravated assault.

That's another way Parliament can show its denunciation for this type of conduct, not by creating a new offence, but by creating a specific aggravating sentencing factor for the existing offence of aggravated assault. You could create a new aggravating circumstance.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Would you recommend that route, as opposed to a completely separate—

[Donald Piragoff]

Mr. Nicholson, I'm employed to give recommendations to the Government of Canada—

[Rob Nicholson, Conservative, Niagara Falls, ON]

Oh, I see. That's good.

Thank you very much. Those are my questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Dusseault.

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

Thank you. I will pick up on what Mr. Nicholson said.

Can you tell me what the maximum penalty for state torture is currently under subsection 269.1(1) of the Criminal Code?

[Glenn Gilmour]

Under the existing torture offence in subsection 269.1(1), it's a maximum penalty of 14 years' imprisonment.

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

And what would the maximum penalty for this offence be as set out in the bill? I have not found the answer. I think it would also be 14 years, is that correct?

[The Chair, Liberal, Anthony Housefather]

In the initial version put forward by Mr. Fragiskatos, it was a life sentence. When he appeared before us on Thursday, however, he said he would accept the same 14-year sentence.

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

For aggravated assault, would it also be a maximum sentence of 14 years?

[Glenn Gilmour]

Yes.

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

These offences are not equally serious. The noble intent expressed by the bill's sponsor and, of course, by the victims' groups, is that this crime should be called something other than “aggravated assault”. This crime would of course be considered more serious if it were called torture or some other name. The victims' groups would like the crime to have a more appropriate name to reflect what they have endured, rather than simply “aggravated assault”. I understand their intent and I think we might be able to find a solution.

Moreover, do you think we should adopt a maximum sentence that is harsher than the one for aggravated assault? Since we want to give this crime a different name, would it not be appropriate to impose a harsher sentence as well for this more serious type of crime?

[Donald Piragoff]

You'd have to look at the elements of the offence, if you were creating your offence, and see how it relates to the range of other offences because after 14 years, the only other offence that Parliament has ever imposed is life imprisonment. It's a jump from 14 to life. That's why I said another option to consider is not to create a new offence but to create an aggravating circumstance under the existing offence such that if the aggravating circumstances exist, it indicates to judges that they should go to the high end, toward 14 years, as opposed to the lower end. Parliament can signal its intention to the courts to treat certain types of aggravated assault more seriously than others if the aggravating circumstances exist and then tell the judges that they shouldn't impose a higher sentence in these circumstances.

There are two ways: creating a new offence or creating the aggravated sentencing factor. Those are two ways that Parliament can indicate its level of denunciation and also signal to the courts that they should take certain circumstances more seriously than other circumstances.

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

As to the definition of “torture”, my question is whether you think there is a risk that the meaning of the word “torture” could be weakened. This word is currently used for very serious, highly reprehensible crimes that are usually committed by states. Do you think that, if we allow that there is another kind of torture, that could make state torture less serious or significant? Do you think there is a risk of diluting the seriousness of crimes committed by the state by calling other types of crimes “torture”?

[Donald Piragoff]

As I think both Ms. Wright and I indicated, Parliament is free to create another offence. If you call it torture, then we'd have two offences of torture in the Criminal Code, and it will cause the problem that Ms. Wright referred to earlier.

[Laurie Wright]

If I could just add, comments are not meant to suggest that there aren't horrific and appalling examples of domestic violence, which are important to be treated with the utmost severity in the criminal law system. I think it's less about watering down the concept of torture. I think it's that torture needs to be kept clear with respect to the act that a state is committing. Then we could have a different kind of offence that would cover those kinds of very severe and appalling behaviours that we also want to sanction through the criminal law system.

I don't want it to be suggested that there aren't terrible offences being committed that aren't extremely serious.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Wright.

Do you have another brief question, Mr. Dusseault?