Justice Committee on Sept. 29th, 2016

[Michael Spratt]

If you leave aside the concerns of mine that wouldn't be addressed through amendments, if this bill is going to pass, I think there needs to be agreement between the definitions of “torture” in one section and the definitions of “torture” in the other section.

Much like calling a spade a spade, I think having parity between the sections is important, not only to have coherence in the code but to avoid some of those interpretation problems. I think the differences may diminish.... Given the current punishment for state-sponsored torture, torture at the hands of the state or state agents, the difference in punishment may have an adverse effect on how we view the reprehensibleness of individuals acting for the state or directed by the state in engaging in this activity. I think there has to be parity there, not only to correct some of those incongruities that I've talked about, but also not to diminish what is a very serious offence that we currently have of torture at the hands of the state or its agents.

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

From my understanding, the proposed bill, as amended, and the current section 269.1 both require 14 years as a maximum sentence.

Does that change your position? Are you looking at the older version of the bill?

[Michael Spratt]

That would bring the bills into better harmony and eliminate some of the problems. The other problems and costs that I've talked about with respect to plea bargaining and complexity, and things of that nature, of course wouldn't be cured necessarily by those amendments. It's not my job. It's the committee's job to weigh those pros and cons, and ultimately come to a decision. The short answer is yes.

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

We understand, reading the provisions of this proposed bill, that the burden of proof is higher in order to get a conviction. I think that is what the basis is of prosecutors now plea bargaining or offering this as a plea bargain, and going for the more easily provable charge perhaps.

If the burden of proof were reduced in this bill, do you think it would have a negative or positive impact on the concern of plea bargaining?

[Michael Spratt]

No, I don't think it's necessarily the burden of proof that leads to plea bargaining. That has to do with larger issues of overcharging, of what would be acceptable for a plea, similar to the mandatory minimum section. I would strongly say that lowering the burden of proof would not be a cure to any of the ills I've suggested.

I'd be very disappointed if that were the cure, because that's a bigger problem, given the stakes that are involved with this sort of charge. There should be a strict and constitutional burden of proof that shouldn't be alleviated, and I wouldn't suggest lowering the burden of proof. I don't suggest that would deal with any of the issues that I've raised.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

You suggested that one of the problems with having another offence here is that the definitions of torture are different. It seems to me that the nature of torture in the two circumstances is different in any case.

For example, for state torture, part of the definition is the purpose for which these acts are committed, such as attaining from a person or from a third person information or a statement, or coercing them to do something, and so on and so forth. However, in the case of private torture, it seems to me there is much more of a likelihood that the motivations are about revenge or about some sadism, or some other kind of unsavoury thing beyond what the state might use it for.

In that context, are separate definitions legitimate?

[Michael Spratt]

Your point is well taken. That is definitely a way to explain those differences. One could definitely be in agreement with your proposition. The short answer is yes. You could very well be correct on that, and that could explain the differences.

The explanation of those differences may not necessarily lead to any additional clarity, or a lack of litigation in the court when we're dealing with statutory interpretation between two different sections. The purpose is important and the differences are important, but the plain wording is important as well.

Although your point is taken, I don't think, necessarily, the very common-sense proposition you've put forward would cure any of the problems that might arise because of the differences.

[The Chair, Liberal, Anthony Housefather]

Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Spratt, for your testimony. I want to ensure that I understand your position.

From my understanding, your position is that there is no gap in the Criminal Code in terms of the sorts of conducts that would encompass what we might broadly characterize as torture, save for the punishment side. In some serious cases, the punishment might be at the lower end of what might seem to be appropriate, given the severity of the circumstances, and perhaps the way of addressing it would be to incorporate an aggravating factor into the Criminal Code, so that those serious cases could be taken into account. Then the message sent in terms of the sentencing would be at the higher end rather than the lower end. Is that a fair characterization?

[Michael Spratt]

I think that is a fair characterization, which is one of the reasons that the suggestion of amending the bill to lower the punishment from life to 14 years seems incongruous with the purpose of the bill, when you look at it that way.

That is not only a fair characterization, but expertly demonstrates one of the inherent problems in some of the proposed amendments that are being considered.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

One of the concerns you've touched on—perhaps you could elaborate a little more—and it's a concern that has been flagged by others, is that if this bill were to pass, there might be inconsistencies that would arise for how the Criminal Code already addresses torture.

When you look at section 273, which is aggravated assault, it speaks of conduct that includes wounding, maiming, disfiguring, or endangering the life of the victim. All of those things could easily fit into conduct that might amount to torture. For example, if section 273 was applied in the case of someone of who might have severely maimed someone, they might be subject to a 14-year sentence, whereas someone else who may have engaged in conduct that is blameworthy could be subjected to a life sentence under the new torture provision.

It would seem to me there could be some inconsistencies and complications that could arise.

[Michael Spratt]

That is an astute point that I didn't raise. Thank you for raising it. I think your question and comment reveal another aspect of this, and that is the definition and the elements of aggravated assault are already very broad, and they're broader than those proposed under this new legislation.

The mental harm that can result from aggravated assault can be a component of the assault itself. That's made clear when we look at sexual assault causing bodily harm and aggravated sexual assault. Those can encompass psychological harms that don't need to result in permanent, cognitive, and visible impairment.

In some ways, the aggravated assault provisions might encompass...and the aggravated assault provisions don't need to have a repeated conduct. There could be one instance. The aggravated assault provisions are arguably broader, and they would capture more conduct than what is proposed to be captured under the new torture provision.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I want to address the issue of the definition proposed in the bill with the definition that applies in the case of state actors, which is under section 269.1 of the Criminal Code and basically adopts the definition provided for in the Convention against Torture. You've raised issues that could apply, practically speaking, in prosecuting an offence, given the inconsistencies in the definitions between the state provision and the non-state provision.

We heard, at our last justice committee meeting, officials from the Department of Justice who said that it would be preferable to have a different definition to avoid any confusion with Canada's obligations under the Convention against Torture. I want to clarify that it's your position that it would be preferable that the definitions be the same if we're going to pass a torture law.

[Michael Spratt]

On the practical impacts, unlike the statutory interpretation, I don't think I'm in a position to give you evidence about what would be preferable.

It seems like it's either one of two, either you want them so different that they are easy to tell apart, or so similar that it makes no difference if you tell them apart because they're the same. As it is now, it appears to do neither. I'm sure others can offer testimony with much more expertise and insight on it than I can for those international issues.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Cooper.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You made it clear that the aggravated assault is general in nature and it captures everything, and that the torture provisions suggested here are specific. Could you see a situation where somebody, instead of getting charged under aggravated assault, gets charged with the torture, and then they could get off on some of the technicalities because of the definitions, such as the repeated contact? Wouldn't that allow you as a defence counsel to say that the infliction of this pain was not repeated, and so it doesn't come within the definition of torture?

[Michael Spratt]

For sure. One could imagine a situation where someone is kidnapped, someone is held hostage, someone is forcibly confined, and one act is inflicted upon them that leads to a number of charges, including the torture charge. Then you could have the perverse inverse of what I was talking about earlier, and one might actually proceed on the torture charge because we're calling an act what it is, and I could only imagine the impact that an acquittal would have because the conduct isn't captured.

[Rob Nicholson, Conservative, Niagara Falls, ON]

So the crown would be left explaining why they hadn't laid the charge under aggravated assault.

[Michael Spratt]

That is a reality of how things might play out in court, and I don't think that our justice system—

[Rob Nicholson, Conservative, Niagara Falls, ON]

What would take place? If they had only charged the person on the torture and it didn't meet all the different specific definitions—that's what you'd argue as a defence lawyer, and say it didn't meet all the criteria—the person walks.

[Michael Spratt]

I would think so. Then you could have a person who is responsible for inflicting tremendous harm, and I think that the situation that you described would not do much for the victim or for public confidence in the justice system, and it may lead to some absurd results.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Fraser.