Evidence of meeting #26 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was code.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Michael Spratt  Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

September 29th, 2016 / 11:05 a.m.

Liberal

The Chair Liberal Anthony Housefather

I would like to call this meeting of the Standing Committee on Justice and Human Rights to order.

Welcome everyone. It's a pleasure to have you here today.

We are continuing our study of Bill C-242, an act to amend the Criminal Code (inflicting torture).

Before we begin, I'd like to call members' attention to the fact that we have received our submission from Global Affairs Canada in writing, and it's in front of members. We can talk about that afterward in our closed session as well as the draft letter which is also in front of you.

It's with great pleasure that we welcome Mr. Michael Spratt from the Criminal Lawyers' Association.

Mr. Spratt, the floor is yours.

11:05 a.m.

Michael Spratt Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Thank you very much. It's an honour, and a privilege to appear before this committee.

I notice that I'm here alone in the hot seat with no one beside me, which is good because I don't have any written submission. I would welcome any oral questions, and I'll try to be as detailed as possible in my answers. It's a typical criminal lawyer thing to rely on oral submissions.

I would like to introduce myself. I'm a criminal defence lawyer. I'm a partner at Abergel Goldstein & Partners here in Ottawa. I'm also a member and former board member of the Criminal Lawyers' Association, and I'm here on that organization's behalf today.

For those of you who don't know, the Criminal Lawyers' Association is a non-profit organization that was founded in 1971. We're comprised of criminal lawyers, mostly in Ontario but also from across Canada. Our association has routinely been consulted by committees, such as this committee, and has offered submissions to some very important government consultations, and intervened quite often at the Supreme Court of Canada. The Criminal Lawyers' Association supports criminal legislation that's fair, modest, and constitutional.

I'm here today to talk about the very important issue of torture and Bill C-242. Although we agree with the aims and purposes of Bill C-242, and recognize the egregious nature of the acts that this bill captures, there are some significant problems from our perspective with the bill, both in the way that it's drafted and its potential application on how it would play out in our criminal justice system.

There are some areas that I don't feel I have the expertise to talk about, but I'm sure have been flagged for this committee, issues that deal with international law, conflicts between the definition of torture and how that might play out on the international stage. I would urge, and I expect the committee will hear, some expert evidence on that point.

Before I get to the practical implications of the bill, one of our main issues is the ever-expansion of the Criminal Code. Individuals are presumed to know the law. It's not a defence to be ignorant of the law, and over the last number of years we've seen an expansion of complexity, duplication, and volume in our criminal law. That is something which should be avoided because there's a cost to that as well.

One has to recognize that the acts sought to be captured under this legislation are already criminal and are covered by offences such as aggravated assault, unlawful confinement, and kidnapping. Kidnapping has a maximum penalty of life. The other offences, including aggravated assault, have maximum penalties of up to 14 years in jail. Of course, there could be other charges that would be captured by the acts contemplated in this bill.

As is the case with most topics in criminal law, there are always cases that seem unusual, cases where sentences seem too low. The Criminal Lawyers' Association is troubled by legislation that is aimed at particular cases or particular circumstances. Our system has a system of appeals, of prosecutorial discretion, and a robust common law history that is able to deal with cases where the sentence at first blush to outside observers might seem inappropriate. One has to recognize there are opportunity costs that are lost when we have complex legislation, and I'll speak about that in a moment.

From our perspective, the measures in the Criminal Code are sufficient to deal with the issues addressed through this legislation.

Looking at the legislation itself, there should be some initial cause for concern because it is both broader and more narrow than the existing torture provisions that apply to state actors. Obviously, the first difference between this new proposed legislation and the current legislation that applies to state actors is the penalty itself. I'm sure the committee is well aware that a prosecution under current section 269.1 carries a maximum penalty of 14 years, and the conflict between the life sentence proposed here and that 14-year sentence may cause some issues in court with respect to the application and indeed send a confusing message to the public.

Diving into the text of this very short bill, the definition of torture is slightly different between these two sections.

Under this bill, torture is defined, but the acts defined as torture have to be for a specific purpose, and that is for intimidating or coercing an individual. That definition also exists in the current state torture provisions, but the current state torture provisions have an additional list of factors that would be considered over and above an intimidating or coercing purpose. Those are listed in section 269.1(2)(a) under the definition of torture, and they include obtaining from the person or from a third person information or a statement, punishing a person for their act or the act of a third party, and importantly, for any reason based on discrimination of any kind.

Those further purposes are not present in this proposed legislation. In that respect, the definition of torture, the application of torture, will be more narrow. That conflict leads to some statutory interpretation problems and some application problems in our courts. At the same time, the definition of torture in the proposed legislation can be read more broadly than the current legislation. Under the current legislation where we're dealing with state actors, torture includes not only physical harm that leads to severe pain or suffering, but severe pain or suffering can be either physical or mental.

The current bill also contemplates mental injuries as a result of torturous behaviour but goes on to narrowly define that criteria, stating that the mental damage must be “prolonged mental pain and suffering...leading to a visibly evident and significant change in intellectual capacity”. I don't know what that means, and that would be the subject of much litigation before our courts. I don't know if that means there has to be a cognitive issue supported by evidence where there's a diminished capacity. I don't know if PTSD or other forms of mental health issues arising from torturous acts would be covered here. It seems that they would be covered if a state actor was involved. Those are some of the conflicts that could lead to some problems in application and litigation.

I do want to talk about some of the practical implications that this could have in our courts.

I have testified over the last number of years on a number of occasions, more than I would have liked to, about mandatory minimum sentences. Thankfully, there's no minimum sentence in this bill, but some of the same problems that we have with minimum sentences can carry over, and that is the use of either police or prosecutorial discretion with respect to laying and proceeding of a charge.

One can imagine a situation where an individual is charged with an aggravated assault, a forcible confinement or a kidnapping, and additionally torture. That individual may have a criminal record with offences of violence on it already. One can see a perverse and insidious inducement for that individual to plead guilty to offences in exchange for the crown not proceeding on the torture charge. That sort of prosecutorial discretion is something we have seen and something which my organization has complained about and flagged as an issue with mandatory minimum sentences. That problem is present here as well.

I should say, when I'm talking about the practical issues, and I spoke a little bit about opportunity costs and problems in that regard, that court time is valuable. Court time is becoming more and more valuable as our Criminal Code expands and as there are more prosecutions.

Ironically, as crime rates are decreasing, court time used to litigate these conflicts that I've indicated, constitutionality issues, proportionality issues, differentiating past precedent, that court time, in our opinion, could be much better spent dealing with the problem of over-incarcerated individuals who are awaiting trial, the scarcity of trial time. Those resources, quite frankly, could be deployed to better effect in other areas that do need real action to see an improvement.

I'm not a criminologist and I can't give you expert evidence on criminological factors or considerations, but I do have some experience. I've been speaking recently with pre-eminent criminologist Anthony Doob, who has testified many times before these committees on the issue of deterrence and how that plays with the criminalization of certain acts.

It seems unlikely, from my experience dealing with the practical realities in court and accused people, and from a review of the evidence in this context and in the context of mandatory minimum sentences, that the criminalization of an act, naming torture and having a specific provision in the code, will achieve any additional deterrence. The evidence is quite clear on this point that it's the likelihood of being apprehended, the likelihood of being caught, that provides deterrence. Additional penalties generally don't provide deterrence.

If someone were going to engage in acts that are already tantamount to aggravated assault, to forcible confinement, to kidnapping, to manslaughter, to murder, to attempted murder, merely having another section in the Criminal Code called torture would not likely deter the individual from committing those acts.

I don't want to minimize the conduct that's captured by this, and I hope my comments, critiques, and criticisms of this bill aren't taken to minimize the experience of anyone who's suffered at the hands of an offender. These are indeed egregious acts that should be treated very seriously.

The other justification that one could see being advanced in support of this legislation is that by somehow naming an offence specifically, reporting of that offence might be increased, so it might be more likely to attend a police station. I would be highly skeptical of that claim. I'd be very interested to see evidence in support of that.

At the end of the day, we have a Criminal Code that has a robust set of laws that deal with these types of very egregious situations. The cost weighed against the benefits of this specific bill, although laudable, in our opinion, simply don't pass the scrutiny that one should direct at Criminal Code provisions when we're legislating very important laws that impact our justice system and ultimately the potential liberties of people who are charged with contravening those acts.

11:15 a.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you so much, Mr. Spratt, for your very clear testimony. I do want to mention that Mr. Fragiskatos, the sponsor of the bill, would have liked to be here, but he's speaking in the House right now. Perhaps he'll be able to come by a little later.

In the meantime, we're going to start with questions and I'm going to go to Mr. Nicholson.

11:15 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Thank you very much, Mr. Spratt, for that analysis of the bill.

One of the issues you talked about is actually something that we have discussed. The author of the bill has talked about it. It was the sentencing. You pointed out that having a life sentence for this is somewhat inconsistent with other provisions of the Criminal Code.

Just for your information, I believe the honourable member who submitted the bill is prepared to move an amendment to bring it down to 14 years. Would that change much in your analysis of this bill, if it was brought down to the same as aggravated assault?

11:15 a.m.

Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Michael Spratt

It wouldn't. It would remove one of those conflicts between the existing provision and this bill. It wouldn't address the other legal and statutory interpretation conflicts that I've identified.

My understanding is that one of the reasons this bill was put forward was specifically because a life sentence was necessary because some of the other offences, not kidnapping, but some of the other offences that are often charged in these situations, don't carry a life sentence, and those maximum sentences were too low.

It seems that an amendment of that nature wouldn't cure all of the ills and would be contrary to the purposes that perhaps started the process of this bill down the road in the first place.

11:15 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

It would make it a little more consistent with other provisions of the Criminal Code.

11:20 a.m.

Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Michael Spratt

I couldn't disagree that it would make it somewhat more consistent with the other measures.

11:20 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

One of the things you indicated, and quite rightly so, is that this bill could result in more litigation, more complications for the courts to try to sort out. Was that part of your testimony, that you believe that's what will happen if this bill is enacted?

11:20 a.m.

Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Michael Spratt

Yes, and I don't want to overstate that point. This isn't a charge that I expect would be laid disproportionately in a large number of cases. We're not dealing with a theft under...or impaired driving, or something like that. These are sort of extraordinary occurrences that aren't all that frequent within the larger picture of offence patterns in Canada. So, yes, litigating these issues would take up court time, but at the same time, if you recognize that maybe not as much court time would be taken up litigating under this bill as would be if we were dealing with charges of impaired driving or something of that nature, one wonders if, since the prevalence of these sorts of offences might not necessarily be as great as that of other offences, whether the amendment is necessary in the first place.

11:20 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

That's a good point. This is not something that's going to be litigated every day and everywhere in the country. It would still be fairly rare for something like this—

11:20 a.m.

Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Michael Spratt

It would be fairly rare, but you can expect there would likely be a number of challenges to the first charges laid, and I would expect to see this provision, given the conflicts inherent in it and the other section and the issues of statutory interpretation, being brought before our courts of appeal and ultimately the Supreme Court at some point in the future.

11:20 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Are there any complications with the interpretation of the existing torture laws? There has been some suggestion to us that if there were two types of torture in the Criminal Code, and somebody was charged with the other one, it would be somewhat confusing in terms of our international obligations, because we do have international obligations with respect to the issue of torture, and we've enacted those. Do you see any problems on that side of it? I know it may be difficult to....

11:20 a.m.

Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Michael Spratt

I would expect so, because these are complex issues. These are complex agreements. Even when committees and Parliament are dealing with other criminal law issues, the thing about criminal law changes is that small changes can have tentacles that touch a wide variety of issues, and certainly the international aspect of this offence could cause a problem. There could also be problems with individuals who would qualify to be charged under both sections. It would be a very interesting issue. When I say that an issue is interesting, I mean interesting for me. When I say interesting, you can translate that into costly, messy—

11:20 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

—and lengthy.

11:20 a.m.

Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

11:20 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

You made a very interesting point about the laying of the charge and the possibility that it might be much more likely that the charges of torture, of this type of torture, would be laid against an individual to encourage them to plead guilty to a lesser charge here. I guess that's one of the issues. I believe you're the first one to have raised that.

You pointed out something towards the end of your testimony with respect to the whole question of deterrence. I would be of the belief that somebody involved with this kind of activity is not going to be deterred one way or the other regardless of how it's classified under the Criminal Code. However, people who are the victims of this would be much more likely to identify it, and you talked about whether they would come forward and bring a charge. Somebody who has gone through this kind of criminal activity is more likely in an everyday lexicon to call it torture than to say that they are a victim of aggravated assault. It might be more likely for the person to say they were tortured by an individual, and that's a crime in Canada.

We do everything we can, obviously, to try to encourage people to report all crimes. I suppose I'm not making the argument for the individual who initiated this bill. However, someone who reports it, who is a victim of torture, would use the common name for this kind of activity rather than saying they were a victim of an aggravated assault. It might make it a little easier for people to understand and to feel more comfortable coming forward. That's just a thought.

11:25 a.m.

Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Michael Spratt

I think there is an important educational aspect that can be accomplished, but not necessarily through the Criminal Code. It's much like someone who's going to be engaging in this type of behaviour probably isn't going to be deterred by this extra section. If I were a betting man, I would wager that someone who's going to engage in this type of behaviour isn't going to be even aware that this section exists. I think much the same can be said to the unwitting victims who aren't expecting and not seeking and not deserving of this treatment. I suspect that precisely what you call it...especially when you're not dealing with.... This is not a nuanced issue. If you're charged with torture, you have inflicted severe pain and suffering and damage on an individual, and I think it's more likely that an individual who is at the receiving end of that sort of treatment, whether it's called torture or not, is going to know that laws have been broken, that laws have been contravened, and the police should be alerted.

I would be skeptical about any increased reporting based on that.

11:25 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

The bottom line is there are at present no gaps in this area in the Criminal Code as it exists today.

11:25 a.m.

Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Michael Spratt

I don't think there are.

I think it can be said that some sentences have been pointed out as being at the low end of the spectrum, given some of the treatment, but I don't think increasing the available sentence is going to necessarily cure that, given that there aren't comments from the judiciary saying, “We would give more if we could, but we can't. That's not where we are.” There's room to move up, either through the evolution of our common law system, through interventions to the court of appeal, and indeed, through that public education of the judiciary and the public that I spoke about earlier.

11:25 a.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Monsieur Hussen.

11:25 a.m.

Liberal

Ahmed Hussen Liberal York South—Weston, ON

Thank you, Mr. Spratt, for coming in. I appreciate it. My question follows up on something you said.

You said that this deals with someone inflicting serious suffering, long-term suffering, and damage to an individual. My point is about education.

If you have such a serious crime, and you've said those who commit these kinds of offences are not really aware that they exist.... I'm talking about the victims. When you have a specific criminal offence outlined in the Criminal Code for these kinds of actions that inflict long-term suffering and cause serious damage to individuals, don't you think that would increase awareness and education for victims, increase the public's awareness about this, and then ultimately help us in combatting these kinds of activities.?

11:25 a.m.

Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Michael Spratt

Under the most charitable view, I think you could be correct. Given the realities of what people know about the Criminal Code—which I brought with me, and I'm not a strong man; it's heavy in one hand—I think that if you presume that everyone knows what's in here, both the offenders and the victims, and society at large, you may be correct, but I don't think that's an assumption that we can make.

Even if there is some benefit as you've described, I think there is an opportunity cost that's lost when you increase criminal litigation. The Criminal Code is a blunt tool to deal with public education, to deal with change in societal attitudes, to deal with those sorts of situations, and when you evaluate the marginal benefits that may arise in the situation that you've described, if there are marginal benefits, and when you weigh that against the cost, I think there are other ways that we can educate the public.

In Canada, we've just gone through a period where we've been discussing the offence of sexual assault quite a lot. It has been in the news. People have been educated. There has been a robust debate about what should happen in court when a sexual assault complainant testifies. What's appropriate questioning? What's not appropriate questioning? What is sexual assault?

I know my children in school are educated about consent and issues like that. That's not through changes in the Criminal Code. That's through a larger, broader public discussion. I think that is a more effective way than legislation to deal with the public education issues that you described.

11:25 a.m.

Liberal

Ahmed Hussen Liberal York South—Weston, ON

Following up on that, I could argue that we moved from the word “rape” to “sexual assault” in the Criminal Code precisely for that purpose. The discussions that are occurring now are after the fact. We did go through that process with respect to the language, so language is important, isn't it?

11:30 a.m.

Member, Former Director and Member of the Legislative Committee, Criminal Lawyers' Association

Michael Spratt

I think language is important. The interesting issue—and of course, this is larger than the scope of my testimony here—when you're dealing with the language and the change from “rape” to “sexual assault”, is there's a tremendous lag time between that change and the conversation we're having now. I don't know if that's because there's a change in the code or because there are other changes happening in society because of other very good work being done by members of Parliament, community activists, victim rights advocates, and the legal community.

I would end by saying you make a very good point, but even if that point is correct, there are other ways it can be accomplished other than by amending the Criminal Code in a way that is going to cause conflict, cause some incoherence, and have those other associated costs, such as perverse incentives to plead guilty and fairness implications in that regard, and the costs of litigating and dealing with these issues in court.

I think the point you raise is fair, but it might be broader than I can answer here.

11:30 a.m.

Liberal

Ahmed Hussen Liberal York South—Weston, ON

Thank you.