Lai Changxing left Hong
Kong for Canada August 14, 1999 on hearing through his contacts in government
that he was about to be arrested for bribery and smuggling. After
he left, in October 22nd, 1999, the Government of China issued an arrest
warrant for him. He became China's number one fugitive.
Canada deported Lai to China on July 22nd, 2011, almost twelve years
after he left Hong Kong. This twelve year delay, was it a haven Canada
gave to a person fleeing the risk of grave human rights violations or
was it a hideout Canada gave to a criminal fugitive?
Mr. Lai made a refugee
claim in Canada and then, on the eve of the hearing of his claim set
for July 3, 2001, switched lawyers. I became his new lawyer and
remain his lawyer to this day. My answer to the question I posed,
you will not be surprised to hear, is that Canada gave a haven to a
person fleeing the risk of grave human rights violations not a hideout
Canada gave to a criminal fugitive. I give that answer not only
in defence of Mr. Lai but also in defence of Canada. Canada, if
anything, removed Mr. Lai too soon. Canada can not be faulted
for the twelve year delay in removing Mr. Lai to China.
Twelve years is not
the normal processing time for refugee claims in Canada. The case
of Mr. Lai took far longer than usual for reasons which had to do with
the strength of his case and the weaknesses in human rights protection
in China. The fault for the delays lies primarily not with Canada
but with China.
The hearing of the claim
took place over five months with forty-five days of testimony.
His refugee claim was rejected on May 6, 2002.
Mr. Lai sought judicial
review of his claim in Federal Court and a stay of enforcement of his
removal order pending the judicial review Court determination.
The granting of a stay requires the meeting of tripartite test - that
the case raises a serious issue, that removal would cause irreparable
harm, and that the balance of convenience favours the applicant.
Madam Justice Layden-Stevenson on June 1, 2006 granted a stay1.
Federal Court judicial
review decisions from immigration related decisions require leave of
the Court for a hearing. If leave is denied, Federal Court proceedings
conclude. There is no appeal from a denial of leave. If Mr. Lai
had been denied leave, he would have left Canada far more quickly than
he did.
Mr. Lai was granted
leave but then denied judicial review, by Mr. Justice MacKay.
An appeal from the Federal Court to the Federal Court of Appeal is also
a two step process. For there to be an appeal, the Federal Court
judge who hears the judicial review must certify that the case raises
a serious question of general importance. Without such a certification,
here too, the case is at an end. There is no appeal from a denial
of certification. Federal Court decisions certifying questions
for the Court of Appeal are few and far between, a handful each year.
In the year 2010, there
were 7,709 leave applications in immigration and refugee cases.
1,256 or 16 % were granted leave. 22 cases or .3% of the leave
applications had certified questions2. While not every
case commenced in 2010 had a decision on leave or, if leave was granted,
a decision on certification during the same year, these figures are
representative of multi-year trends.
So the Lai case was
far from typical for delays in the Canadian legal system. On the
contrary, it was most unusual.
Mr. Justice MacKay certified
four questions. Every one of them was tied in some way to defects in
the China legal system, either its widespread use of torture to elicit
confessions or its related practice of arresting and interrogating first
under incommunicado detention, and then charging later, typically with
a confession in hand.
Though Mr. Lai was the
subject of an arrest warrant since October 1999 and has been considered
for twelve years China's number one fugitive, Mr. Lai has not yet formally
been charged with or accused of any crime. The authorities were
following the usual practice and awaiting his arrest and interrogation
before charging him.
The questions Mr. Justice
MacKay certified were these:
a) Where
the Minister relies upon interrogation statements produced abroad by
foreign government agencies, must the Minister establish those statements
were voluntary when made, particularly where there is some evidence
of a lack of voluntariness of one or more of the statements, and evidence
of torture sometimes used in obtaining statements from persons detained
is included in information on general country conditions?
b) Is
the Minister required to give notice in advance of a hearing, of specific
criminal acts alleged against the claimant, or is it sufficient if evidence
at the subsequent hearing reveals specifics of criminal acts allegedly
committed by the claimant?
2. Does the decision
of the Supreme Court in Suresh v. M.C.I., 2002 SCC 1, [2002]
1 S.C.R. 3, providing for separate assessment of a foreign state's assurance
to avoid torture of returned nationals, apply where there is some evidence
of generalized resort to torture in the foreign state, or only where
there is evidence reasonably indicating resort to torture in similar
cases?"
Article 1F of the Refugee
Convention provides:
"The provisions
of this Convention shall not apply to any person with respect to whom
there are serious reasons for considering that:
The Convention Refugee
Determination Division of the Immigration and Refugee Board found that
Mr. Lai fell within the parameters of this provision. The Board
found that there were serious reasons for considering that Mr. Lai had
committed a serious non-political crime outside the country of Canada
prior to his admission to Canada. They did not though make a finding
what that crime was.
The Supreme Court of
Canada in the case of Suresh wrote:
"A distinction
may be drawn between assurances given by a state that it will not apply
the death penalty (through a legal process) and assurances by a state
that it will not resort to torture (an illegal process). We would signal
the difficulty in relying too heavily on assurances by a state that
it will refrain from torture in the future when it has engaged in illegal
torture or allowed others to do so on its territory in the past. This
difficulty becomes acute in cases where torture is inflicted not only
with the collusion but through the impotence of the state in controlling
the behaviour of its officials. Hence the need to distinguish between
assurances regarding the death penalty and assurances regarding torture.
The former are easier to monitor and generally more reliable than the
latter."3
The reason the fourth
question arose is that the Government of China, in its eagerness to
get Mr. Lai back to China and into its hands, produced assurances pre-emptively
in 2001, promising the Government of Canada neither to execute nor to
torture Mr. Lai. The assurances against execution became necessary
because the Supreme Court of Canada earlier that year had interpreted
the Canadian Charter of Rights and Freedoms to prevent removal to the
death penalty, with an undefined proviso for exceptional circumstances.
The Canadian need for
assurances against the death penalty applies to all countries.
It applies to the United States. The law was developed in cases
with American death penalty fugitives, cases I litigated on behalf of
Amnesty International at the Supreme Court of Canada, the cases of Ng4
and Kindler5, Burns and Rafay6. In the earlier
two cases, the Courts held assurances were not necessary. In the
later cases, ten years later, I asked the Supreme Court of Canada not
to follow its previous decision and hold that assurances were now necessary,
a submission the Court accepted. Burns and Rafay were later extradited
to the United States after the United States gave Canada assurances
that the death penalty would not be sought nor imposed against either
Burns or Rafay.
When the Federal Court
grants and denies leave, it does not give reasons. The test for
granting leave is that the applicant has raised an arguable issue.
One can only speculate on what the Federal Court considered arguable
in the Lai case when it granted leave. A reasonable guess is that the
issues the Court identified as serious questions of general importance
for the purpose of certification were also issues the Court considered
arguable for the purpose of leave. So the twin Chinese practices
of torture of suspects and charging only after arrest and interrogation
stood at the heart of the court procedures which generated delays.
One can see the concern
about Chinese abusive practices from the specifics of the questions
certified. The first question was predicated on a Court finding
that there was
"some evidence
of a lack of voluntariness of one or more of the statements, and evidence
of torture sometimes used in obtaining statements from persons detained
... included in information on general country conditions"
The second finding
- of evidence of torture sometimes used in obtaining statements from
persons detained included in information on general country conditions
- needs no explanation. Country condition information about China
is replete with evidence of torture. The United States Department
of State Country Report on Human Rights for China calls torture of suspects
"chronic".
The first finding though
"some evidence of a lack of voluntariness of one or more of the
statements" does require explanation. What the Court was
referring to there was, in part, the sad case of Tao Mi.
The Minister of Citizenship
and Immigration, in the refugee claim before the Immigration and Refugee
Board, produced a signed declaration of Tao Mi implicating Mr. Lai in
criminality. Tao Mi later provided evidence to Canadian lawyer
Clive Ansley in Shanghai that her declaration was elicited through mistreatment.
Mr. Lai provided this information to the Board confidentially.
Tao Mi told Clive Ansley
this:
"In September
of 1999, while my two-year-old son watched, I was taken away from my home
in Xiamen by five to six investigators. I asked 'why?'. Their response
was: 'You are a criminal suspect.' I said 'I want a lawyer'. Their response
was: 'You are not allowed to hire a lawyer'. From October of 1999 to
October of 2000, I was under house arrest. During this time, I was taken
away by '4.20' investigators three times. They detained me in a hotel.
On the first occasion, my detention lasted two or three days. On the
second occasion, I was detained five or six days. The third time they
took me away, I was detained for more than two months. For the entire
period of all these detentions, my family did not know where I was and
I was not allowed to contact anyone.
In the hotel, I
was place under surveillance 24 hours per day. I was not allowed to
be close to windows, I could only take a walk in the corridor within
10 meters of my room; the door of the bathroom had to be open while
I was using the toilet or taking a bath; while sleeping at night, to
make sure that I couldn't escape, I was not allowed to wear anything
but brassiere and underwear, and my hands and feet were handcuffed to
chairs....
I was threatened
by the investigators several times. Before the Spring Festival, I asked
them to let me go home and celebrate the festival with my family. The
answer was: "In your case, you will be put into jail for at least
10 years. Forget about going home...
I was too frightened
to insist on telling only what I knew to be true at that time, and to
resist agreeing with some of the things they insisted were true...
If the police or
the investigators discover that I have signed such an affidavit, I am
dead."
The 4.20 investigation
team is the name of the team established to investigate the crimes of
Mr. Lai. It is named after the date of its establishment, the 20th day
of the fourth month or April 20th. The year of establishment was
1999.
After the Board and
the Government of Canada received this information, the Government of
Canada, in spite of its commitment to confidentiality, asked the Government
of China to bring Tao Mi to the Canadian consulate in Shanghai.
At the consulate, an R.C.M.P. officer interrogated her, without notice
to counsel for Mr. Lai and in the presence of a Chinese security official,
in an attempt to have her abandon her testimony given to Clive Ansley.
Tao Mi immediately thereafter disappeared. She has yet to reappear.
Mr. Justice MacKay in Federal Court wrote:
"That
interrogation by the R.C.M.P. officer, undertaken without advice to
the applicants' counsel, was in my view, an extraordinary undertaking,
unfair in its process,..."
Mr. Justice de Montigny,
in a later court proceeding involving Mr. Lai, wrote:
"Like my colleague
Justice MacKay, I think this way of proceeding was most inappropriate
to say the least."
For anyone familiar
with Communism, all one had to do is read the statements of witnesses
and suspects the Chinese Government gave to the Government of Canada
to produce against Mr. Lai at his refugee claim to realize that they
were elicited through mistreatment. In tenor, they were replicas
of the statements found in Arthur Koestler's "Darkness of Noon",
full of contrition, acknowledgements of the wisdom of the Party and
the State, promises to act in the future for the greater good of all.
No one, other than a Communist Party ideologue, talks the way these
statements read.
The reference in the
certified questions to the absence of notice of the charges against
Mr. Lai before his refugee claim began and the absence even in the conclusions
of the Board of reference to specific criminal offences is directly
tied to the failure of the Government of China to provide such information.
Mr. Lai had, to be sure, allegations thrown at him of bribery and smuggling.
But bribing whom, bribing when, bribing where, bribing how? Smuggling
what, smuggling when, smuggling where, smuggling how? These questions
were left unanswered both in the Ministerial notice to intervene to
seek the exclusion of Mr. Lai from refugee protection on the basis that
there were serious reasons for considering that he had committed a serious
non-political crime and in the decision of the Board excluding Mr. Lai
from refugee protection on the same basis.
Lest anyone think that
the Chinese practice of arresting and interrogating first and charging
later is perfectly all right, I remind you of the International Covenant
on Civil and Political Rights Article 14 which provides:
"3. In the
determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality:
China signed this Covenant
in 1998. Thirteen years have now passed without ratification.
This I suppose is typical of Communism - promise everything, do
nothing. A specific reason for the failure to ratify may well
be that the Party/State neither wants to change its practice of arresting
and interrogating first, charging later, nor be held to account for
maintaining this abusive practice.
Mr. Lai lost both at
the Federal Court and Court of Appeal. At the Court of Appeal, the answer
to the first three questions was no. The fourth question turned
out to be unnecessary to decide. So the Court declined to answer it.
To be a Convention refugee,
a claimant must establishe a nexus between a well founded fear of persecution
and one of five listed reasons - race, religion, nationality, political
opinion or membership in a social group. Because the Board made
a finding of no nexus and that finding was upheld on review and appeal,
the answer to the fourth question could not determine the outcome of
the appeal.
Mr. Justice MacKay,
though he commented adversely on the way Tao Mi had been treated, found
that reliance by the Board on her original statement produced by the
Chinese authorities to the Government of Canada and by the Government
of Canada to the Board was unnecessary for the Board conclusions.
So that reliance did not undermine the Board decision. Mr. Justice
MacKay further found that, though Mr. Lai was not given notice of what
was alleged against him and the Board made no specific findings of criminal
activity in its decision, the fact that the Minister of Citizenship
and Immigration, in the evidence presented to the Board, provided details
of allegations of criminal activity was sufficient. The Federal
Court, by answering no to the first three certified question, affirmed
this reasoning of Mr. Justice MacKay.
Mr. Lai applied to the
Supreme Court of Canada for leave to appeal the decision of the Court
of Appeal. Leave was denied.
The decisions of the
Federal Court, the Federal Court of Appeal and the Supreme Court of
Canada were all unfavourable to Mr. Lai. However, the fact that
Mr. Lai got as far as the Court of Appeal is a credit to the Canadian
courts and a testimonial to the failings of the Chinese legal regime.
In the system in place
at the time Mr. Lai made his refugee claim, the Immigration and Refugee
Board determined only whether Mr. Lai was entitled to the protection
of the Refugee Convention. The system has since changed to expand
the jurisdiction of the Board to consider as well whether a claimant
is entitled to protection under the Convention against Torture from
deportation to torture. However, the Board at the time of Mr.
Lai's claim made no such determination. That determination remained
to be made by an official of the Minister of Citizenship and Immigration
under a process called pre-removal risk assessment.
Mr. Lai then applied
for pre-removal risk assessment, and was found on May 11, 2006 not to
be at risk. That determination was also challenged in Federal
Court.
Again here leave was
granted. Again here questions were certified. So here too
we are dealing with the tiny .3% of Federal Court cases which jump these
two hurdles. The chance of one person jumping these two hurdles
twice is infinitesimal. Any charge that Canada is providing a
hideout to criminal fugitives by pointing to the Lai case ignores how
unrepresentative the Lai case is.
This time Mr. Lai succeeded
in Federal Court. Mr. Justice de Montigny in a decision dated April
5, 2007 overturned the pre-removal risk assessment decision of the Minister
and ordered it be redone7.
By looking at the certified
questions we can see here too that the difficulties the case posed were,
for the most part, human rights violations in the Chinese legal system.
The certified questions were these:
"1. Where the
Minister takes a public position on pre-removal risk to an applicant
before a pre-removal risk assessment application is decided, is there
a reasonable apprehension that the Minister's decision on pre-removal
risk assessment application will be biased?
2. What is the appropriate
standard of review for the interpretation of a diplomatic note providing
assurances against the death penalty or the infliction of torture or
other cruel or unusual treatment?
3. Is it appropriate
to rely on assurances against torture in assessing an applicant's risk
under section 97 of the IRPA, when there are credible reports that torture
prevails in the country where the applicant is to be removed? If so,
under what circumstances?
4. If there is a
risk of torture in an individual case, what are the requirements that
an assurance against torture should fulfill to make that risk less likely
than not? Should the assurance provide for monitoring to allow for verification
of compliance for that assurance to be found reliable? In the absence
of a monitoring mechanism, is the notoriety of the person to be removed
a relevant, and a sufficient, consideration for the PRRA officer in
determining whether it is more likely than not that the assuring state
will adhere to the diplomatic assurance?"
The first question had
a uniquely Canadian context. The other three related to China,
specifically to the diplomatic assurances that China gave and whether
they were adequate.
An argument of reasonable
apprehension of bias arose because the Minister intervened in Mr. Lai's
refugee claim and submitted not just that he was a criminal but also
that the diplomatic assurances China gave were reliable and sufficient
to protect Mr. Lai from risk of persecution on return. The Minister
then went on to determine, in pre-removal risk assessment, whether the
assurances were reliable and sufficient to protect Mr. Lai from risk
to life, torture or cruel and unusual treatment or punishment on return.
Mr. Justice de Montigny
found no reasonable apprehension of bias on the basis that different
officials of the Department of Citizenship and Immigration were involved
in the intervention at Mr. Lai's refugee claim and in the pre-removal
risk assessment decision. He found though that the assurances
were deficient, because there was no mechanism in place to assess compliance
with the assurances.
Even though Mr. Lai
at the Federal Court lost on the argument of bias, he succeeded overall.
He could not and in any case did not want to appeal the decision of
the Federal Court. The Minister, who could have appealed, decided
not to do so. Instead the Government of Canada went about renegotiating
the assurances.
The new assurances,
dated March 341, 2010, provided:
"... The Canadian
side can know where LAI Changxing is detained. At the request of the
Canadian side, the Chinese side will arrange, as swiftly as possible,
visits by Canadian embassy or consular officials resident in China to
LAI's place of detention, including living quarters, and the Canadian
officials can meet with him. An interpreter chosen solely by the Canadian
side can accompany the Canadian officials.
3. During LAI Changxing's
detention and at the request of the Canadian side, the Chinese side
will, if necessary, provide video-conferencing facilities so that LAI
Changxing can contact Canadian embassy or consular officials resident
in China.
4. Under the Code
of Criminal Procedure and the Act Concerning Attorneys of the People's
Republic of China, LAI Changxing has the right to commission a lawyer
licensed to practice law in China to defend him. He also has the right
to refuse to be defended by a lawyer so commissioned and to choose another
lawyer. LAI Changxing has the right to meet with his lawyer without
being monitored.
5. When the court
holds open hearings of LAI Changxing's criminal case of alleged smuggling
under the Code of Criminal Procedure and the Criminal Code of the People's
Republic of China, the Canadian side may send embassy or consular officials
resident in China to attend the hearings.
6. After LAI Changxing
returns [to China] for his trial, the Chinese judicial authorities will
make synchronized audio and video recordings of the court hearings and
pre-trial interrogations and record the identities of all court officials
present at LAI's trial and all pre-trial interrogators. Upon request,
the Canadian side will be able to consult the relevant audio and video
recordings (and other information).
7. Under the Prisons
Act and the Detention Centre Regulations of the People's Republic of
China, all detainees receive the necessary medical examinations. If
the Canadian side submits a reasonable request, the Chinese side will
allow an independent medical establishment legally qualified [to operate]
in China to examine LAI medically. Because medical examination reports
are private, the Canadian side may see the contents of the medical examination
report with LAI's consent..."
The Minister then redetermined
the pre-removal risk assessment application of Mr. Lai, relying on these
assurances. The Minister's delegate found that Mr. Lai would not
be, on return, at risk to life or at risk of torture or cruel and unusual
treatment or punishment. This determination too was challenged
in Federal Court. Mr. Lai again applied for a stay, this time
unsuccessfully. Mr. Justice Shore on July 21, 2011 denied a stay.
The Court found Mr. Lai did not present a serious issue to the Court
and did not face irreparable harm on return. Mr. Lai was removed
the next day.
The judicial review
proceeding though continues. The leave application is still pending.
Mr. Lai faces now the argument of mootness. However, the application
can still have value to him because it could determine the meaning of
ambiguous provisions in the diplomatic assurances.
In its denial of stay
of enforcement of removal pending the judicial review challenging the
pre-removal risk assessment decision, the Federal Court, I believe,
erred. The finding of no serious issue is unpersuasive in light
of the fact that the questions posed by Mr. Justice de Montigny as serious
questions of general importance for the purpose of appeal to the Federal
Court of Appeal remained unanswered. As well, the finding of the
absence of irreparable harm is linked to the finding of no serious issue.
In general, I would
say that the Canadian legal system, by keeping Mr. Lai in Canada for
twelve years determining whether he would safe from torture, cruel and
unusual treatment or punishment and arbitrary execution on return, kept
him in Canada not long enough, rather than too long. The legal
issues that needed to be canvassed were not adequately considered before
Mr. Lai was removed.
The twelve year delay
though did have a consequence, one not just for Mr. Lai but for anyone
facing removal to torture. The Canadian courts and ultimately
the Government of Canada accepted that diplomatic assurances that a
person will not be tortured have no value unless there is in place a
mechanism to monitor compliance with the assurances.
In my view, the mechanism
fashioned by the revised assurances for Mr. Lai are inadequate.
For instance, the assurances allow a Government of Canada representative
to attend open hearings of Mr. Lai's criminal case, but not closed hearings.
To take another example, the assurances allow an independent medical
professional to examine Mr. Lai, but say nothing about allowing such
an examination of his corpse, should he die in prison.
Yet, the Government
of China budged from its original position and did establish a mechanism
for monitoring compliance with the assurances which it had not originally
provided. The protracted litigation on the Lai case was not just
wheel spinning. The wheels got traction; both the Canadian and
Chinese legal systems moved.
With the Lai case, protection
against deportation to torture has been enhanced, not only for deportation
to China, but also, because of the precedential value of the case, against
deportation to torture worldwide. Even if this protection is still
not what it should be, this enhancement alone justifies the twelve year
legal battle.
David Matas practices
immigration and refugee law in Winnipeg, Manitoba, Canada.
