INTRODUCTION AND BRIEF DESCRIPTION
Section 269.1(2) of the Criminal Code of Canada defines torture as the intentional inflicting of severe physical or mental pain and suffering for specific purposes, excluding acts inherent in or incidental to lawful sanctions.
SECTION WORDING
269.1(2) For the purpose of this section, "torture" means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person (a) for a purpose including (i) obtaining from the person or from a third person information or a statement, (ii) punishing the person for an act that the person or a third person has committed or is suspected of having committed, and (iii) intimidating or coercing the person or a third person, or (b) for any reason based on discrimination of any kind, but does not include any act or omission arising only from, inherent in or incidental to lawful sanctions.
EXPLANATION
Section 269.1(2) of the Criminal Code of Canada defines 'torture' and sets out its scope. The section specifies that torture involves intentionally inflicting severe pain or suffering, whether physical or mental, on a person for a particular purpose. These purposes include obtaining information or a statement from the person or a third party, punishing the person for a suspected act, or intimidating or coercing the person or a third party. The section also notes that torture may be committed for any reason based on discrimination, but does not include any act or omission arising from lawful sanctions. This exclusion means that the use of lawful penalties, such as fines or imprisonment, is not considered torture if it is done in accordance with the law. Torture is a serious crime under international law and is prohibited by various international treaties. The inclusion of this provision in the Criminal Code of Canada highlights the government's commitment to prevent and punish acts of torture. It also shows the importance of ensuring that individuals' human rights are protected, and no one should experience physical or mental pain or suffering under any circumstances. This section serves as a deterrent to acts of torture and reinforces the message that torture will not be tolerated in Canada.
COMMENTARY
Section 269.1(2) of the Criminal Code of Canada outlines the definition of torture for criminal prosecution. The significance of this section cannot be overstated. It recognizes the rights of individuals and provides legal protection to prevent the infliction of severe pain or suffering. This section is particularly important in Canada where human rights are highly valued, and it affirms the country's commitment to the rule of law. The definition of torture outlined in section 269.1(2) is intentionally broad, covering acts or omissions that cause severe pain or suffering, whether physical or mental. This expansive definition ensures that perpetrators of torture can be held accountable regardless of the method they use to inflict pain or suffering on their victims. Additionally, the inclusion of mental pain or suffering is particularly significant since psychological torture can often be as harmful as physical torture. Furthermore, the definition of torture includes acts of intimidation or coercion, which acknowledges that power imbalances can be used to inflict harm on individuals. The inclusion of the phrase "for any reason based on discrimination of any kind" in section 269.1(2) is an essential aspect of the definition of torture. This phrase recognizes that torture can be justified or motivated by prejudice and demonstrates Canada's commitment to protect all individuals, irrespective of their background or characteristics. It also signals that the country takes a strong stance against any form of discrimination, especially when it results in the disproportionate treatment of vulnerable groups. However, it is crucial to note that lawful sanctions are not included in the definition of torture. The exclusion of lawful sanction is necessary, given that certain situations, such as the use of force by law enforcement agencies, may lead to the unintentional infliction of pain or suffering on individuals. It is essential to ensure that such instances fall outside the purview of this section and that those grounds are adequately defined. In conclusion, Section 269.1(2) has been crucial in protecting the rights of individuals and ensuring that perpetrators of torture can be held accountable. This section defines the term torture and includes a broad definition of what constitutes torture. It also recognizes the importance of psychological torture and the discriminatory nature of certain acts of torture. While excluding lawful sanctions from the definition of torture is essential, it is equally important to continue to monitor situations where force is used appropriately, to ensure that this exclusion is not abused. Overall, Section 269.1(2) is an essential tool in the fight against torture and the protection of human rights in Canada.
STRATEGY
Section 269.1(2) of the Criminal Code of Canada creates a prohibition against torture. The provision prohibits any act or omission by which severe physical or mental pain or suffering is intentionally inflicted on a person for certain purposes, such as obtaining information, punishing individuals, or intimidating or coercing individuals. In light of the gravity of the offense of torture, it is essential that strategic considerations be taken when dealing with this provision. One of the strategic considerations when dealing with Section 269.1(2) is the evidentiary requirements of the section. Given the severity of the offense, the standard of proof that must be met is high. The prosecution must provide evidence beyond a reasonable doubt that the accused intentionally inflicted severe pain or suffering on a person for one of the prohibited purposes. Specific evidence, such as medical records and expert testimony, must be presented to the court to prove that the pain or suffering inflicted on the victim was severe. Another strategic consideration is the complex nature of torture cases. Torture cases have a higher level of complexity compared to other cases as they are often international, involving multiple jurisdictions. The accused could be a foreign national or government official, making the diplomatic and political ramifications of decisions directly connected to the case critical. Diplomatic immunity or privileges associated with the status of accused person could further complicate cases involving international law. One key strategy that could be employed in dealing with Section 269.1(2) is to establish strong working relationships between investigative agencies, such as the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP). Integrated investigations would strengthen the evidence presented before the court. Another strategy that could be employed is the effective use of international law and human rights principles. Given that the prohibition against torture is a human rights norm and a fundamental principle protected under international law, lawyers could leverage rulings from international courts or covenants to buttress arguments in court, arguing that Canada is bound to international standard and obligation under these principles. Lastly, education and awareness-raising about the prohibition against torture, its effects, and consequences are critical in strengthening the enforceability of Section 269.1(2) of the Criminal Code. Enlighten both officials and the public can foster an integrated effort towards ensuring that those who are liable of torture are brought to justice, and victims receive retributive justice and reparations. In summary, proactive and collaborative approaches, integrated regional human rights law, complex diplomatic and political considerations, high evidentiary standards,, and general awareness-raising can help effective enforcement of Section 269.1(2). While these strategies can provide relevant tools for handling torture cases in Canada, the continuous effort of governing institutions to curb torture globally remains vital.