Crime and punishment

Why Canada has no new law on torture by individuals

Bill C-242 rejected by Parliament after being unfairly trashed in committee
Photo: Neville Nel

When Bill C-242 dragged itself onto the floor of the House of Commons last night, it gasped a final breath and died.

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Introduced by Liberal MP Peter Fragiskatos in April 2016, the bill sought to add a new offence to Canada’s Criminal Code: torture by individuals (in the domestic realm and in the businesses of prostitution, pornography and human trafficking).

From Sept. 22 to 29, during sessions of the Standing Committee on Justice and Human Rights, lawyers from the Department of Justice and the national Criminal Lawyers’ Association trashed the proposed law and convinced committee members to recommend that the bill not proceed to third reading in the House of Commons.

Fragiskatos’s bill would have added a new section on non-state torture, where anyone who inflicts physical or mental torture on another person could be punished through life in prison.

Fragiskatos has taken the slaughter of his first attempt at law-making in stride.

“I really believe that the committee gave this an open and honest hearing,” he told me during a recent telephone interview. “They allowed me to come in and speak. Jeanne and Linda [anti-torture advocates] from the east coast were allowed to come in and testify, at length. Beyond that, I was allowed to sit in and ask questions of the justice department lawyers and other witnesses.”

I disagree strongly with his description of how things went down. I want to present testimony directly from the committee hearings, so you can decide whether the content and tone of questioning, and the arguments presented by lawyers, have credibility. Did the committee exercise the kind of stalwart intelligence and critical thinking skills required to make an informed decision?

Advocates for the bill get 35 minutes before the committee

Jeanne Sarson and Linda MacDonald have spent 24 years advocating at national and international levels on behalf of women, men, and children who have suffered torture at the hands of family members or in the areas of prostitution, pornography and human trafficking. Their website is called Persons Against Non-State Torture.

They are nurses with master’s degrees. They are feminist activists. They have travelled from their homes in Truro, Nova Scotia, to cities and conferences around the world, speaking out loud the truths they first came to understand as nurses when they heard ghastly stories from victims of torture.

Since 1992, they have believed that torture by individuals (as opposed to state officials) is a human rights violation that needs to be remedied in Canada by adding non-state torture to the Criminal Code.

Section 269 of the Criminal Code recognizes state torture as a crime. Fragiskatos’s bill would have added a new section on non-state torture, where anyone who inflicts physical or mental torture on another person could be punished through life in prison.

In June 2012, the United Nations Committee on Torture told Canada that it “bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention [against torture] for consenting to or acquiescing in acts of torture or ill-treatment by non-State officials or private actors.”

These non-state or private actors include an ex-Mountie and his wife in the Ottawa suburb of Kanata, whose torture of the man’s 11-year-old son had to be prosecuted under more than six sections of the Criminal Code because there is no law on non-state torture. The man was convicted this month of “two counts of aggravated assault, one each of sexual assault causing bodily harm, unlawful confinement, assault and failing to provide the necessaries of life, and a range of firearms offences,” according to the Toronto Star. Sentencing will occur in December.

The Native Women’s Association of Canada, the Canadian Nurses Association, Amnesty International, the Canadian Federation of University Women and a feminist women’s shelter from Fragiskatos’s Ontario riding wrote letters of support and were watching to see what would happen with Bill C-242.

On Sept. 22, when Sarson and MacDonald came before the House of Commons committee, they learned that the chair had allocated 10 minutes in total for them to speak.

MacDonald objected that they were not appearing as a team but as individuals, and that they had prepared statements covering different aspects of the issue that would take more than 10 minutes to deliver. The chair allowed them to proceed. Together, their shortened testimony took 35 minutes. Questions from the committee lasted 15 minutes.

A 10-page written brief by Alexandra Lane, a self-described victim of non-state torture, and her husband, Robert G. Holodack, Jr., supported the proposed law, but Lane did not appear before the committee. As a survivor of childhood and adolescent torture at the hands of her father and his male friends while growing up on a farm in Saskatchewan, she has channelled her life energy into healing and advocating for criminalization for non-state torture crimes. Appearing before the committee was not an option for her, as she now lives in Florida so she can be safely away from people in her family.

On Sept. 27 when the committee met for a second session, four lawyers from the Department of Justice were not allowed to give testimony because they are employees of a federal department but were present to answer questions from committee members. This lasted 90 minutes. The committee then met in camera for 10 minutes. On Sept. 29, Michael Spratt from the Criminal Lawyers’ Association made a statement and then answered questions. That session lasted 70 minutes. The committee then met in camera for 15 minutes.

From life imprisonment to 14 years

Within the first hour of the first day that the committee heard testimony, Fragiskatos agreed to change the sentencing parameters of Bill C-242 from life imprisonment to 14 years in prison.

During questions from the committee, he said:

I explained already why I put forward a suggestion of life imprisonment. However, there are a lot of lawyers in the room who could look at this and think of an appropriate penalty. I would even say, and I repeat this point because I think it's important, that if you were to take it down to 14 years, and therefore allow the bill to be more legally palatable, I would still think it a just change because it acknowledges the human rights abuse that has been experienced.

Minutes later, Fragiskatos expounded on his willingness to change the sentencing provisions.

I gave other examples justifying why I put forward a suggestion of life imprisonment as a punishment. Perhaps that was making a statement and I'm proud to have done that. In our Criminal Code, the punishment for murder is life, but the same applies to high treason, in subsection 47(1). There's a complex discussion to be had around that, but I think the statement that I was putting forward was really to condemn the human rights abuses that have been perpetrated. You're right. I've addressed it. I'm willing to take it down.

Based on Fragiskatos’s consent, the committee agreed to amend the proposed bill so it would have language identical to the language in Section 269 of the Criminal Code, which covers torture by state officials. The amended bill would also carry the same sentence as Section 269 — and the same sentence as aggravated assault under the Criminal Code — namely, 14 years’ imprisonment.

This move would have grave consequences because it set the stage for lawyers from the Department of Justice to denigrate the bill’s relevance and to condemn it — falsely — as causing injury to Canada’s reputation and ability to report to the United Nations on the crime of state torture.

Department of Justice focuses on Canada’s international responsibilities to report torture

In answering questions before the committee, Donald Piragoff, a lawyer with the Department of Justice, took issue with using the word torture in the proposed bill:

If Parliament wants to create a new offence, it is the freedom of Parliament to do so, but Parliament should not call it torture because that has implications. We already have an offence of torture. Call it something else.

He went on to say:

Call it grievous aggravated assault, or call it torturous assault, but don't call it torture, because we already have an offence of torture, which is understood and well defined in international law. We should not be creating any doubts that there is only one definition of torture in the world internationally, and that is the one in 269.1. Parliament is free to create other offences, but it should not create any confusion by creating another offence that somehow overlaps with torture or is a lesser form of torture.

In response to a question about other offences in the Criminal Code, he said:

There are existing offences that apply already. Aggravated assault applies, and aggravated sexual assault applies. If Parliament wants to create an offence of intentional infliction of mental pain or suffering or physical pain or suffering, Parliament is free to do so, but don't confuse it with the existing offence of torture.

Liberal MP Iqra Khalid asked the lawyers from the Department of Justice:

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?

Piragoff, from the Department of Justice, replied:

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.

Fragiskatos arrived late at the committee that day and when he heard what the lawyers were saying, he challenged them.

The [UN] committee against torture has recognized that torture in the private realm qualifies as torture. That's absolutely critical to understand….

Finally, with respect to the apparent concerns raised by Global Affairs Canada, subsequent to appearing before the committee last week, I followed up and consulted with Global Affairs Canada. They have no problem with the amendment that I put forward.

The Global Affairs rabbit hole

When the standing committee next convened, the chair tabled a letter from Global Affairs Canada on the statements made by Department of Justice lawyers on Sept. 27.

Reading this letter creates an Alice-down-the-rabbit-hole experience. At the centre of the letter’s twisted logic is the notion that somehow Canada cannot distinguish between torture inflicted by state officials and torture inflicted by private individuals, and that by prosecuting individuals for non-state torture, we would “enter the ranks of those countries where torture occurs.”

I believe Canada is capable of doing this. I also believe that the seeds of doubt that the Department of Justice and Global Affairs Canada planted in the committee’s collective mind disposed the committee to reject Bill C-242.

Global Affairs begins its letter by saying, “Our advice is consistent with the testimony previously provided by our colleagues at the Department of Justice.”

The letter then says two things that contradict lawyer Piragoff’s opposition to creating another torture offence:

The [United Nations] Convention [on torture] does not prevent Canada from creating additional new offences containing the word “torture”. The Convention does not prevent or restrict criminalizing the infliction of severe mental or physical suffering by non-State actors, acting without State acquiescence. In the opinion of Global Affairs Canada, the proposed law does not appear to conflict with Canada’s international obligations. Should this bill become law, Global Affairs Canada believes that Canada could continue to implement its Convention obligations in good faith.

Just when it seems clarity might dawn, the final two paragraphs of Global Affairs’ letter introduce what I see as a new and ridiculous twist.

It is possible that, if Canada changes the definition of torture in its domestic law, or expands its understanding of what constitutes torture, other States that practice torture could alter their own domestic laws with a view to avoiding or watering down their obligations…. Second, if Canadian courts convict individuals for torture in the private sphere under this new proposed law, Canada could be perceived as joining the ranks of those countries where torture occurs. It would be important for Canada to counter such perceptions and to separate incidents of torture in the private sphere from incidents of state torture in its reporting to the Committee against Torture and when defending its record in international forums, in order to make clear that it is meeting its obligations under the Convention.

I believe Canada is capable of doing this. I also believe that the seeds of doubt that the Department of Justice and Global Affairs Canada planted in the committee’s collective mind disposed the committee to reject Bill C-242. This is especially true because the wording of Fragiskatos’s amended bill ended up being identical in wording and punishment to Section 269, which covers state torture in Canada’s Criminal Code.

Mr. Spratt seals the deal

On Sept. 29, Michael Spratt addressed the committee on behalf of the national Criminal Lawyers’ Association.

He told the committee that existing laws on aggravated assault, kidnapping, and forcible confinement “are sufficient to deal with the issues addressed through this legislation.” He also claimed that creating a new law would not deter perpetrators, and that the added costs to the court system would be too high.

“It's a cost-benefit analysis, when one looks at the effects this will have and the mischief it may cause,” Spratt stated.

On Oct. 6, when the committee met for the last time, it took 10 minutes to decide it would not hear more testimony from the Department of Justice lawyers. Instead, the committee unanimously passed a motion introduced by Iqra Khalid to recommend that the bill proceed no further:

While the principle is laudable, the amendments proposed by the Bill may be redundant in light of existing Criminal Code provisions. These provisions can be used to deal with even the most serious forms of torture by private individuals; The existing offences of aggravated assault and aggravated sexual assault are specifically intended to respond to the most heinous types of non-homicidal conduct; There would be better ways to ensure that judges clearly have the authority under section 718.2 of the Criminal Code to consider torturous conduct.

The fallout and pushback

During the final meeting on Oct. 6, a committee member, Ron McKinnon, made the following comment in response to the motion:

I'm going to support the motion. However, I don't agree with the part of it that says this law would be redundant. Yes, there are existing charges that could be laid in these circumstances, but they don't really cover the nature of this. They don't represent the nature of the offences we're dealing with, but I am of the understanding that the justice department is looking seriously at similar provisions in the existing law to expand them to deal with those extraordinary circumstances that the bill was intended to address.

Based on this intervention, the committee chair agreed that he and his two co-chairs would write a letter to the minister of justice asking her to consider the issues raised by Bill C-242 when she begins a review of the Criminal Code.

Jeanne Sarson and Linda MacDonald, in a letter sent to all members of the standing committee and to the minister of justice on Nov. 22, thanked McKinnon for his words. They charged that the rest of the standing committee did not distinguish “that there is this population of non-State torturers who were/are organized; they purposefully plan, and intentionally inflict severe physical, sexualized, and mental pain and suffering which is very different than the ‘reckless infliction of harm’ perpetrated in aggravated assaults, including aggravated sexual assault.”

They also stated that a serious gap in Canada’s criminal code means that torture perpetrated by non-state actors is “invisibilized as are the individuals so tortured,” adding that no prevention strategy can exist for crimes of non-state torture when the crime is “misnamed an aggravated assault.”

According to the letter, 13 countries or U.S. states have laws related to non-state torture, and Canada is practising discriminatory inequality in its failure to support the human and legal right of all citizens not to be subjected to torture.

Sarson and MacDonald made clear that the amendment to Bill C-242 agreed to by Fragiskatos on the first day of testimony was unknown to them before they entered the room.

They may be taking some comfort in having the last word. Unfortunately, such comfort rests on the premise that members of the committee have taken take time to read what they have to say.

I doubt that many of them will. They belong to an elite club that believes the words spoken by other elites. The committee is accountable only to itself. And its ability to distinguish fact from fiction seems for the most part to be as invisible as victims of torture are to the nation-state of Canada.

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