Support to Add Non-State Torture to the Criminal Code of Canada

BACKGROUND: The Geneva Convention of 1949 protects citizens and prisoners of War from ‘State’ inflicted torture. ‘State’ refers to a peace officer, a public officer or a member of the Canadian Forces inflicting severe physical or mental pain on a person. Section 269.1 of the Criminal Code provides for the offence of torture as the intentional inflicting of severe physical or mental pain by a state official (Parliament of Canada, 2016). ‘Non-State’ torture refers to torture committed by parents, spouses, other kin, guardians, neighbours, trusted adults, strangers, human traffickers, johns, pimps or pornographers. It is generally referred to as torture that happens in the private or domestic sphere.

This resolution addresses the fact that Non-State Torture is not recognized in the Criminal Code of Canada.
Naming the crime in the criminal code gives victims back some of the power that was taken during the crime (Lane, 2016). It’s a women’s (and girls’) issue because it has been globally acknowledged that violence against women and girls as a distinct group is the most common human rights violation on this planet. The London Abused Women’s Center reports that approximately 60 women a year report that they have suffered Non-State Torture victimization (Sarson & MacDonald, 2021. In Canada, these acts of torture are instead typically considered to constitute the offence of aggravated assault under section 268 of the Criminal Code (Parliament of Canada, 2016).
In denying that torture is perpetrated by private individuals or groups in Canada, governments have been failing to uphold their due diligence obligations to respect, protect, and remedy, women’s rights and children’s (predominately girls) rights not to be subjected to torture (Canadian Centre for Child Protection (CCCP), 2009). The CCCP reports to the Minister of Public Safety; therefore, it can be said that Canada is aware the torture of children occurs but takes a complacent position. Whereas torture includes acts of brutality that may be life-threatening and may far exceed what might normally be included within the offence of aggravated assault, which carries a maximum punishment of 14 years of imprisonment, a maximum punishment of life imprisonment would better reflect the harm that is caused to a victim of Non-State Torture (Parliament of Canada, 2016). The previous United Nations Special Rapporteur on Torture, Manfred Nowak, opined that, “We should consider that in the year 2020, more and more acts of torture are committed by different types of non-state actors, rather than by states… I see it’s more important to recognize the state’s obligation to broaden the scope of the definition of torture in their domestic codes” (Sarson & MacDonald, 2021