This past April, Canadians recoiled when they heard the story of a young, emaciated man who was dumped at a Regina hospital. Near death and a ghost of his former self, he had been repeatedly beaten, cut up and tortured, his family said.
Eight months later, the 27-year-old man, who now resides in Victoria, B.C., has made a remarkable recovery, friends and family say. His weight has shot up, he’s built up muscle, replaced his walker with a cane, and can navigate inclines.
But his biggest hurdle may still lie ahead: trying to change Canada’s torture law.
Dustin Paxton, the alleged perpetrator and the victim’s ex-roommate, faces a preliminary hearing in Calgary in January. He has been charged with aggravated assault, sexual assault and forcible confinement — but not torture. That’s because the Criminal Code of Canada only recognizes torture as a crime when it is committed by an agent of the government — such as when a police officer tries to beat a confession out of a suspect.
The victim, whom Postmedia News has chosen not to name because of the nature of the charges, wants to change that and has started reaching out to lawmakers.
“It is (his) wish to have the government of Canada recognize torture as a separate crime with recourse and retribution fitting and suitable so that sufferers will not feel re-victimized by the trivialization of what they had to endure,” Jodie Gastel, a family spokesperson, said in an email.
Existing laws don’t cut it, and are an “insult to those who have endured this horror,” she said.
Hadayt Nazami, a Toronto immigration lawyer who has represented many torture victims, said he “absolutely” supports the idea of including torture by “non-state actors” in the Criminal Code.
“Torture, regardless of who commits it, is a much more serious offence than other categories of assault,” he said. “Torture, in addition to other things, is a crime that targets the very essence of humanity or human dignity of a person with very far-reaching physical and psychological effects.”
Halifax counsellors-turned-activists Jeanne Sarson and Linda MacDonald have spent years trying to spread that message on university campuses, at international conferences and in meetings with politicians.
They say torture victims have been burned with hot pokers, raped with broom handles, forced to swallow human or animal fluids and subjected to other unimaginable acts. When these victims experience flashbacks, they don’t just relive the moment in their heads — they relive the pain, the tastes, the smells.
“The sensation of the torture comes back again with the memory,” Sarson said.
The duo is convinced that a provision needs to be added to the Criminal Code dealing specifically with torture in a private setting. In fact, they persuaded a panel member at the 2008 meeting of the United Nations Committee on the Elimination of Discrimination Against Women in Geneva to confront a Canadian Justice Department lawyer about this omission.
According to minutes from that meeting, the lawyer replied that torture by non-state actors was covered by existing laws, such as simple, aggravated or sexual assault, forcible confinement, kidnapping or trafficking in persons.
“The sentencing court could take aggravating circumstances into account and grant the victim compensation, such as reimbursement of medical expenses,” the lawyer added.
David MacAlister, director of the Institute for Studies in Criminal Justice Policy at Simon Fraser University, doesn’t think changes to the law are necessary either.
“The current Criminal Code carries a number of assault-related offences that seem to fit the circumstances of almost any assault-related case you can imagine,” he said. “The most serious of the code assault offences is aggravated assault which arises when a person is wounded, maimed, disfigured, or their life is endangered. That offence carries a maximum penalty of 14 years in prison, thereby giving the judge considerable leeway to impose a fit sentence.”
MacAlister noted that the maximum penalty for torture by government officials is the same: 14 years.
He added that including torture by non-state actors in the code could take away from the “special attention” that torture receives on the international stage.
“I think adding a torture offence (by non-officials) would add nothing and take away from the special emphasis on controlling government officials (and those acting on their behalf) engaging in torture that is reflected in our international obligations, such as the UN Convention Against Torture.”
Even though civilians cannot be charged with torture in Canada, that hasn’t stopped police agencies from using the term.
In April, for instance, Toronto police issued a news release asking for the public’s help in locating three men wanted in connection with the holding of another man for ransom. While being held, the victim was “beaten, tortured and burned,” the release stated.
Earlier this month, RCMP in B.C. issued a news release asking for the public’s help in locating four men believed to be involved in a series of kidnappings and violent assaults. One victim was “tortured and mutilated,” the release said.
Some American states, including California and Michigan, have signed laws making torture by non-state actors criminal offences punishable by life in prison.
The state of Michigan did so in 2006, spurred by the case of a man accused of torturing his blind, diabetic wife.
David Leyton, a prosecuting attorney in that state, said in an interview that the legislation has helped to fill a “gap” in the law between run-of-the-mill assault cases and murder cases.
“We have so many cases of brutal assault, short of death, where the maximum penalty should be more than 10 years,” he said.
The man recovering in Victoria says a similar gap exists in Canadian law and he wants to fill it.
“I emailed Dr. Keith Martin my federal MP,” he wrote in a web forum in early December. “His office is right down the street and I’m asking him to help make NSAT (non-state actor torture) a law in Canada. Now I’m going to phone him.
“I was tortured for two years. Every day.”