Advocates urge criminalization of ‘non-state torture’

OTTAWA — Canada needs a special criminal charge to cover extended campaigns of physical and emotional abuse that amount to torture, say two Nova Scotia nurses who are in Geneva to try to shame the country before a United Nations body.

Linda MacDonald and Jeanne Sarson, nurses and human rights advocates from Nova Scotia, are appearing before the United Nations Committee Against Torture this week to apply more pressure on the Canadian government to amend the Criminal Code to include “non-state torture” as a distinct crime.

“Electric shocking... caging, shackling in basements, water torture in a toilet or a bucket... (it’s) done at home or in a private place with tools you wouldn’t think of like a hot electric light bulb or a gun, scissors or knitting needles,” said MacDonald.

Many of the acts are already crimes in themselves, but MacDonald and Sarson argue that protracted abuse is a particular kind of crime that isn’t captured by a charge of, for instance, aggravated assault. Canadian criminal law only recognizes torture as a crime if it’s done by someone working for the state.

The abuse they’re talking about is often perpetrated by victims’ relatives, friends of older family members, human traffickers, and johns who want very violent sex. MacDonald said that because nonstate torture is not identified as a crime, there is no data to show how widespread the problem is.

If the numbers at one women’s centre in Ontario are any indication, it could be stunning. Megan Walker, the executive director of the London Abused Women’s Centre, said 59 women between January and October fit the description of victims of torture.

Walker said more than once a woman has come to the centre struggling to walk because an intimate partner has shoved a hot curling iron into her vagina.

Women and girls’ stories are so horrendous, she said, they’re terrified of reporting perpetrators to the police because they fear no one will believe them. They also fear that if they are caught reporting the abuse, the terror will escalate.

In Ottawa in 2009, federal public servant Donna Jones died after her husband doused her with boiling water – the culmination of many months of physical and emotional abuse. She went 11 days without medical attention after the scalding, apparently not calling for help even though a telephone was within reach where she lay on a makeshift bed in her basement. She had broken bones and air-gun pellets in her skin when she died of septic shock from her burns. A jury eventually convicted her husband of murder.

In Winnipeg this fall, police said a woman who was being trafficked for sex was regularly locked in a freezer until she passed out from lack of air, and subjected to electric shocks. She was victimized for four months, police said.

Children sometimes suffer long-term abuse by guardians who mistake what they’re doing for discipline. In another Ottawa case, a former police officer was sentenced to 15 years in prison last year for chaining his son up in a basement, starving him, and burning his genitals.

Walker said she sees women who have been abused by their partners or relatives, and women and girls who are trafficked, but most abusers have one thing in common: an attraction to violent pornography and a desire to realize their fantasies.

“These girls will have identified to us that they have been dragged across the floor by their hair, had their heads put into the toilet where they can’t breathe, and the toilet consistently flushes, they’ll come up for a breath and then will be pushed down again,” she said. Victims suffer permanent physical and psychological damage.

Walker said the extreme forms of violence could be considered state torture if a government were responsible.

She wants to see non-state torture identified as a crime so women’s experiences are validated, to establish a data bank where torture can be tracked, and so that law officials and medical providers can be trained to recognize signs and believe women when they come forward with their stories.

The London Abused Women’s Centre shared questionnaires with The Canadian Press that victims completed, without identifying information.

One individual wrote on a survey, “When you’re tortured, it destroys who you are and what you know. It annihilates what it is to be human. You are still in the human race if you are abused, but you don’t exist as a human being when you are tortured.”

MacDonald and Sarson have been pushing this cause for 25 years. The closest they came to change was a private member’s bill from Ontario Liberal MP Peter Fragiskatos, which died in 2016.

Fragiskatos’ bill proposed to change the Criminal Code to define torture as an act of violence carried out not just by state actors but also ordinary citizens. He said it was unsuccessful because the House of Commons justice committee determined it would conflict with Canada’s obligations under international laws that specify that torture is a crime carried out by a government.

“That was the vision, but the proposal was found to conflict with international law, that torture is a state crime,” said Fragiskatos.

MacDonald and Sarson say a number of countries have included non-state torture or sexual torture in their criminal laws.

MacDonald said after the pair appeared before the UN anti-torture committee in 2012, it recommended Canada change its Criminal Code to include nonstate torture. Now they’re going back to tell the committee Canada failed.

Celia Canon, a spokesperson for Justice Minister Jody Wilson-Raybould, said creating the offence of private torture could “seriously weaken” Canada’s contribution to the international effort to prevent torture under the Convention against Torture, because there would be two definitions.

Canon said the Criminal Code already contains numerous crimes of assault, including sexual assault.

“In other words, the Criminal Code already contains crimes that capture the kind of conduct associated with private torture, most notably the crimes of aggravated assault and aggravated sexual assault, while existing sentencing provisions already provide a range of aggravating factors that could apply in a case of private torture,” she said.

But the activists reiterated that what women and girls experience behind closed doors is consistent with state torture and is beyond the various classes of assault.

“Activists say if you try all avenues the only thing left is social shaming, so that’s what we’re hoping to do because Canada is held up as a beacon of human rights around the world right now,” MacDonald said.