Justice committee  To be clear, we're not here to put forward a position, so we're not speaking on behalf of the minister or the department. We're here to answer questions.

Justice committee  If I could just add, comments are not meant to suggest that there aren't horrific and appalling examples of domestic violence, which are important to be treated with the utmost severity in the criminal law system. I think it's less about watering down the concept of torture. I think it's that torture needs to be kept clear with respect to the act that a state is committing.

Justice committee  Sure. Thank you very much for your question. I think the first thing to say is that no one here is suggesting that having a separate offence for torture with respect to private actors somehow puts us not in conformity with our Convention against Torture obligations. As long as the existing offence stays as it is, and as long as we continue to undertake the actions that we are to take in order to prevent and discourage torture, we are domestically in conformity.

Justice committee  We would not be going against our obligations under the convention by creating a second torture offence that applied only to private actors. It's less a question around our legal obligations and whether we're fulfilling them. It's more at the policy level with the object of the convention being around stopping states from torturing.

Justice committee  It could apply to someone who is under the direction of a state official. The definition is such that the primary target is state officials, but state officials cannot get themselves out of the situation by saying that they told somebody else to do it. Similarly, somebody who accepts the direction of a state official to commit these kinds of acts could be charged and it could be argued that they fall under it.

Justice committee  I think it's probably a joint answer between the two of us. Certainly, the origin of the Convention against Torture was to recognize that there's something particularly heinous about a state and its officials undertaking deliberate infliction of suffering on citizens or non-citizens in order to dissuade them from certain political ends, to get information out of them, those kinds of things.

Justice committee  The way in which states are called to account under the Convention against Torture is that the convention establishes a committee, and states are required to appear before the committee on a periodic basis to report to the committee as to whether their domestic laws and practices bring the state into conformity with the convention.

Justice committee  The review would be done when the bill is tabled. If the government were proposing amendments in committee, there would be another review that would be done internally of the amendment at that time. Obviously, amendments that come from other parts of the committee wouldn't be subject to a reporting obligation, but advice could be sought.

Justice committee  There are certainly different approaches that can be taken. I think that the idea behind the standard here is that it's only in the clearest of cases that you would want, essentially, the executive to prevent Parliament from being able to have a debate on whether it wishes to go forward with a certain piece of legislation representing a certain policy solution to a problem.

Justice committee  On section 4.1 in terms of Canadian standards, there are no comparable provisions across the country with respect to the provincial legislatures. There are some international comparators. I can perhaps ask Laurie Sargent to—

Justice committee  We do provide considerable advice. We're not the only source of advice to which our minister or other ministers are entitled. There is a process for seeking advice from private firms if a minister wants to do so, but the bulk of the advice that our minister receives would come from within the Department of Justice.

Justice committee  Yes. The crown is considered to be the same as a private person when she is consulting her counsel, so there is solicitor-client privilege that respects the confidentiality of that advice.

Justice committee  I think that there are several things to keep in mind. Many of the provisions that have been struck down in recent years by the courts are relatively old provisions that would have predated the charter and the obligation on the minister to report. That's certainly one factor to keep in mind.

Justice committee  I think that when you get to the reporting standard, it's looking at it a little bit from the other way around. It's not to say that there might not be impacts on rights and freedoms and that the government doesn't have a case that it wants to make for justifying that impact. The question is, have you crossed over the threshold where a lawyer would not be able to make the credible argument in court in order to be able to justify the legislation?

Justice committee  The way we look at it is that it has to be a bona fide and reasonable argument that's capable of being accepted by a court.