In late January, various media sources reported on the severe beating of a Nova Scotian teenager and the subsequent arrest and conviction of her attackers who were charged with aggravated assault, assault with a weapon, and forcible confinement.
The girl was found with missing chunks of hair, torn-off fingernails and a multitude of bruises on her face and body. The attack sparked intense provincial debate on whether the conviction should have been on the grounds of torture, considering that the way the girl was attacked appeared more like torture than aggravated assault.
This debate draws us to the question, “What is the difference between torture and aggravated assault?” Torture is defined in the Criminal Code of Canada as severe mental or physical pain intentionally inflicted on a person and being perpetrated by state officials, such as a peace officer or member of the Canadian Forces.
Admittedly, the Code does not explicitly recognize it as a crime when committed by civilians. Aggravated assault is defined as an act that wounds, maims, disfigures, or endangers the life of a person. Given the events that transpired during the attack, the locals of Yarmouth, N.S. are calling for redefinition of torture in the Criminal Code.
However, many argue that aggravated assault charges do not capture the degree of pain inflicted on the individual as a torture charge would. Jeanne Sarson and Linda McDonald are two nurses from Nova Scotia fighting for the definition of torture to include acts committed by civilians. In 2017, they travelled to Geneva to campaign their cause to the human rights council at the United Nations. So far, their efforts have been met with indifference.
I wonder if it is reasonable to believe that the conviction of torture should extend to civilians rather than just state officials, and that the Criminal Code is inadequate in telling the difference between aggravated assault and torture. The question, ultimately, is whether or not a criminal should be punished based on greater specificity on how their crimes violated their victim’s human rights, legal rights, and security of person.
On one hand, such changes might offer the victim and their family relief in knowing the perpetrator has been convicted for the crime they actually committed. While redefining torture to include acts by civilians might expand the realm in which we understand crime, it may actually—and paradoxically—lessen the actual amount of time offenders spend in jail.
This is because the opportunity for the sentencing judge to impose concurrent sentences could be limited, given that both torture and aggravated assault have a liability for imprisonment for up to 14 years. Torture covers a large portion of various attacks, whereas aggravated assault, assault with a weapon, and forcible confinement are separate crimes that add up in sentences.
It would be a greater injustice to the victim by eliminating the possibility of a longer imprisonment. I do not believe that it would be beneficial to the victim’s overall well-being by redefining torture in the Criminal Code to extend to acts committed by civilians.
Doing this would seem to perpetuate the idea of letting offenders get out of jail after serving a relatively short sentence, despite the horrible crimes they committed against the public interest. I believe that the length of incarceration should reflect the crime committed. and that the purpose of the conviction is to separate the individual from the public, rather than what the crime is “technically” identified as in the eyes of the law. This would allow for the possibility of serving concurrent sentences and thus protect the general public from the offender, for as long as legally possible.
Ultimately, the question on how to proceed with this dialogue relates to the preferences of the victim and their advocates. Are they willing to sacrifice a conviction under its proper name? Or, in the end, is a longer prison sentence retribution enough?
