Justice Committee on Sept. 29th, 2016

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Hussen.

Now we're going to Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I, too, would like to thank you, Mr. Spratt, for a very lucid presentation. It's very helpful to the committee at this stage of our deliberations, and I'm grateful you came.

You talked just now to Mr. Hussen about sexual assault. That's an offence that covers a wide waterfront, it seems to me, from egregious conduct all the way down to some unwanted touching, if you will. Similarly, aggravated assault covers a huge range of possible conduct.

If the sponsor were here, I think he would be saying to call a spade a spade, to use the words that need to be meant so that people have clarity, and that torture is a totally different category from aggravated assault.

I take your point about not wanting new offences in the Criminal Code. I get that, but it's not that new an offence. We already have one for state actors, so we'd just be trying, particularly with the amendments, to make torture in the private sphere consistent with that for state actors.

There is a last thing I want to ask you on that point, which is on the issue of gender violence particularly in the field of torture. A lot of the motivation and the witnesses for this have come from feminist groups, which say that torture is about the destruction of humanness, personality, and identity of the person being tortured. It's about breaking a person.

Why wouldn't we want to have clarity in our Criminal Code about this category of conduct, which isn't just aggravated assault, but seems to be something quite distinct?

[Michael Spratt]

That's a valid point. I think the criminal law doesn't accomplish that already. The example you gave of sexual assault, all offences, really, covers a broad range of behaviours. In the case of sexual assault, it's from an unwanted touch in public to a full-on egregious, serious, violent encounter. It's the same with aggravated assault. It could be a consensual fight, where a punch goes wrong and breaks a nose, or it could be cutting off fingers to achieve a nefarious end. We call it the same thing. It's recorded as the same thing. So it would be somewhat incongruous with how we deal with other offences to start being very specific here.

The thing about our common law system and criminal law specifically is that a general principle is applied to specific cases, taking into account the specific facts of the offence and the offender. It's a bottom-up approach, where you start with the general, and then get specific as you get into the facts and as you get toward the ultimate end. Inverting that pyramid and starting with specifics, and then applying them generally, could lead to problems.

If your point is taken, and this is the direction in which the committee and ultimately this bill progresses, the inconsistencies that you mentioned need to be addressed.

I just noticed another one for the first time. I don't know if I was up too late last night and my eyes got blurry, but I notice that the definition of torture in this bill is repeated infliction of pain and suffering. I don't think the word “repeated”—and I will check, because I don't want to say it if it's not true—is in the state-sponsored or state torture section. Those sorts of incongruities can be damaging and may be counterproductive to the very purpose of your bill.

[Murray Rankin, NDP, Victoria, BC]

That can be done by drafting.

You had two sets of concerns. You talked about drafting and you talked about the implementation. The drafting issue is one that we might be able to have addressed. In interests of time, I note that France has a section on torture in its criminal code, its penal code, and the state of Queensland has one, yet they're signatories to international conventions, as is Canada, so that doesn't seem to be a problem.

Could we give this the title that the sponsor of this bill wants by calling it not “torture”, but by saying something like “torturous assault” or something that would take it to another category on a gradient from “assault” to “aggravated assault” to “torturous assault”? Could that be a compromise?

[Michael Spratt]

Yes, and thank you for the question, because it reminds me of what I didn't answer on your last question, which I think dovetails perfectly into that. It goes back to my point about legislating generally and applying that specifically.

I'm going to use an example. Again, I'm going to preface this by saying that I am not demeaning or minimizing any of the purposes of this bill, but in the Criminal Code we have theft charges: we have theft over, theft under, theft of clams from clam beds, and theft of cattle. That needs to be changed, and I'd make the same arguments there. To accomplish the goal of calling a spade a spade, to ensure that the judiciary and prosecutors turn their minds to the important issues you've addressed—and it might be beyond the scope of what this committee can do at this point—I think the better way to legislate is statements of principle, of aggravating factors.

We have a list of aggravating factors. This already is an aggravating factor. It already is, but we can make it explicit in the Criminal Code that if an offence of physical harm is repeated, is egregious, or is for certain purposes, it should be explicitly addressed and considered as an aggravating factor. That would direct the judiciary and prosecutors to address it specifically, and it would not lead to some of the problems that I've alluded to earlier. That's the model that I think would be preferable. I think that would accomplish the goals you've mentioned and also the goals that Mr. Hussen mentioned and that are, I think, important to the sponsor of the bill and, indeed, important to society at large.

[Murray Rankin, NDP, Victoria, BC]

Mr. Chair, am I out of time?

[The Chair, Liberal, Anthony Housefather]

You are, Mr. Rankin, but I'll allow a short question if you still want it.

[Murray Rankin, NDP, Victoria, BC]

It's just a quick one, I hope.

In your summary about the practical implications, you talked about one that I thought was really important, if I may say so, and one that was less critical. I thought you made an excellent point about the plea bargaining that would occur and the potential for abuse of the prosecutorial discretion when you plead guilty to a lesser included offence so as not to have the “torture” word on your record when you go to jail.

I don't know that the opportunity cost of having this in the code is that big. After all, it's not going to be used very often, and I take it that the first case would be the subject of a lot of charter and other challenges. After that, and after the parameters are worked out, I can't see the opportunity cost being that high.

[Michael Spratt]

Yes, and I hope that I clarified and conceded somewhat that that is a lesser concern. It's a bit of a double-edged sword. If it's not going to be used that often, if it's not going to be employed that often, the costs might not necessarily be—

[Murray Rankin, NDP, Victoria, BC]

[Inaudible—Editor] very often either, but we see a social need to have a word like that in our Criminal Code, right?

[Michael Spratt]

Yes, and that point is well taken.

If I may, I will take this opportunity to make one final point about plea bargaining and the pressure that an accused might face, guilty or not, to accept a plea to a lesser charge. That is injurious in and of itself. It's injurious not only because it can lead to unfairness in specific circumstances, but more broadly, those prosecutorial decisions or police decisions are shielded and immunized from review, from detailed reasons, and from appeal.

Ultimately, at the end of the day—and I'm sure you can hear testimony from victims' rights advocates and victims of this sort of conduct—I don't know how a victim would feel if their attacker, their assailant, was charged with torture and that charge was dropped in exchange for a plea to a lesser count. That might be injurious in and of itself to that individual. There are costs there as well.

[The Chair, Liberal, Anthony Housefather]

Thank you so much, Mr. Rankin.

Mr. Bittle is yielding his time to Mr. Fragiskatos.

Mr. Fragiskatos can ask you some questions directly, sir.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you very much, Chair.

I will only be here for a few minutes because I'm slated to speak in the House, but I did want to attend.

Mr. Spratt, you and I have spoken on the phone before. It's nice to see you in person.

[Michael Spratt]

It's nice to put a face to the name.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Indeed. I know you have concerns with the bill. That's why we had spoken on the phone. Part of the issue you have is that you believe private members have no business putting forward private members' bills with respect to amending the Criminal Code. I know that amendments that have been made in the past, perhaps, are not to your liking.

What is wrong with a private member suggesting a reasonable change to the Criminal Code, a change that would strengthen Canadian law through the enshrinement of human rights principles in the Criminal Code? That is the intent and spirit of what I'm doing. What's wrong with a private member acting in that way? I suppose you would prefer subjects like heritage days, and they have their place, but I prefer to do something a little more ambitious. What's wrong with that?

[Michael Spratt]

I hope you don't take my concern with the bill, both in its drafting and potential problems in its application, as a comment on the spirit of the bill as intended, the conduct that it's intended to capture, or the seriousness of this type of action. It's not any of those things.

My concern with private members' bills goes back a number of years. Private members' bills have been used as a vehicle in past criminal matters to advance legislation that really should be government legislation. Private members' bills don't receive the same type of scrutiny, or broad consultation, or review for constitutionality that other bills might. That's one problem.

The other problem I have in general with private members' bills is the subject matter. I'm not expert on this area. I'm not a parliamentarian. If I introduced a bill, I'm sure it would fall down at the first hurdle because I don't know the rules. I believe private members can't introduce legislation that has to do with economic matters, like spending. Criminal justice legislation, even small changes, has incredible costs associated with it.

[Peter Fragiskatos, Liberal, London North Centre, ON]

With all due respect, it's the job of honourable members on a parliamentary committee such as this to scrutinize a bill that's been put forward, and to suggest reasonable changes.

When it comes to law, perspective matters a great deal, and the perspective of lawyers is critical. I wonder if you also believe that the perspective of those who have endured tremendous suffering is also important and should be taken into account when we name crimes. An important part of the rationale for this private member's bill is to call crimes what they are. This applies when someone effectively has been tortured, when someone has endured suffering, when an act, if committed by a state official, would have been called torture but is now called aggravated assault. You can see where I'm coming from.

I ask this question not in a combative spirit, but in a spirit that wants to make sure that you recognize—I know that members of the committee recognize this because I've spoken to them about my view, shouldn't we have in law the perspective of human beings who have endured great suffering and violence. Shouldn't that perspective be reflected? Shouldn't we call crimes what they are?

[Michael Spratt]

I've answered the question previously about calling crimes what they are and the utility and costs of that. I personally am well aware of the impact of crimes on individuals. I see it on a daily basis. As part of my job, as part of my role in the justice system of ensuring fairness, I have to read the statements of these individuals. I have to look into their eyes. I have to cross-examine them. I have sat at committees like this, beside victims of horrible, horrible crimes, and heard their stories. Of course that needs to be taken into account.

At the end of the day, when it comes to private members' bills, when legislation is being advanced that can impact liberty, security of the person, the type of punishment we as a society believe an offence deserves, the type of punishment that is reflective of the very important principles you have suggested—all this is of the utmost importance. I agree with you. It is so very important. That's why, in my opinion, the government should be legislating on those very important issues. They should be reviewed and robustly studied because they are, and I agree with you, so important.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Surely, members of Parliament also have a perspective and can put forward meaningful reforms that would strengthen Canadian law. That is the intent and spirit of what I am trying to do.

I have a final question. You mentioned punishment. In your op-ed, where you took a look at my bill for iPolitics, I believe, you talked about punishment and the fact that the life imprisonment I had suggested did not fit and was not appropriate. If you look at the code, subsection 47(1) I believe, treason is punishable with life imprisonment as the applicable punishment. The same is true for aggravated sexual assault. We have offences in the Criminal Code where life imprisonment is what's called for.

If you look at the cases, the sorts of examples I gave in my testimony, those are heinous acts, certainly on par, I think, with treason and aggravated sexual assault. Life imprisonment is the charge there. What is wrong with suggesting it in the sorts of examples that I have put forward?

[Michael Spratt]

One of the issues is the incoherence and conflict inherent in that with respect to the state torture in the Criminal Code. The other issue is that when an individual is charged with these offences, there are already mechanisms, if the offence is so egregious, that would result in very severe and lengthy sentences. I think it would be ill-advised to think of the.... One could change almost every section of the Criminal Code to a maximum sentence such as you are suggesting. I don't know why aggravated sexual assault wasn't suggested to be increased to life imprisonment and why other offences could.

It's a cost-benefit analysis, when one looks at the effects this will have and the mischief it may cause. At the end of the day, if this measure isn't going to deter crime or to enhance reporting, if the only objective here is to call something what it is, I think there are other ways this can be accomplished that may not carry some of the costs I have talked about for the last number of minutes.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Do I have one more question?

[The Chair, Liberal, Anthony Housefather]

You are really out of time. It has to be very short.

[Peter Fragiskatos, Liberal, London North Centre, ON]

The intent of putting this bill forward is based on my many conversations with victims, namely—I can't say his name because of a publication ban—the victim of Dustin Paxton, who told me, “Peter, what I went through is not aggravated assault. It is torture. Unless it's recognized as torture, I won't be the same person I was prior to the assault, prior to what happened to me, prior to the torture.” That is the intent and spirit of all this.

We've had a respectful dialogue before, and we just had another one, so I appreciate the exchange.

With respect to all members, I have to get back in the House because I am speaking soon.

Thank you very much, Mr. Chair, and thank you to my colleague for giving me time.

[The Chair, Liberal, Anthony Housefather]

You are welcome.

I don't know if that needs a response, because there wasn't really a question there, but I am sure you also enjoyed the respectful dialogue, Mr. Spratt.

We are going to move to the second round of questions, and we are going to start with Ms. Khalid.

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

Thank you very much, Mr. Spratt, for coming in today to speak about this. I want to continue a little with what the sponsor of the bill was saying.

You mentioned in your opening remarks that the intent and spirit of the bill is more focused on the victims, and that it is a good intention. In your opinion, what amendments specifically could be proposed to this bill that could make it more palatable for the criminal justice system and also for victims?