By Jerome A. Cohen

Last night a Canadian court refused to issue a stay of proceedings to “remove”  Lai Changxing to China. Lai, an enormously successful entrepreneur and businessman, left China for Canada in 1999, as charges were leveled against him alleging smuggling, bribery and other criminal charges, but has never received asylum. The stay of proceedings would have given the courts an opportunity to further consider the complex legal issues involved in Lai’s long-running application to be allowed to remain in Canada rather than be returned to China for prosecution.

            Shortly before Foreign Affairs Minister Baird left for his recent visit to China, the current Canadian Government seems to have made a decision to put an end to its longstanding dispute with China over Lai’s fate. Prime Minister Harper is reportedly planning to go to China himself in the near future. The Chinese Government apparently provided new assurances to Canada some time ago about how Lai would be dealt with on his return, seeking to alleviate Canadian concerns about Lai’s human rights (death penalty? torture? fair trial?) should he return. The case turns on several issues. One is whether the administrative immigration hearing officer who dealt with this round of Lai’s application was sufficiently independent of the immigration minister to accord Lai fair consideration, especially after the minister had made clear his view of the matter. A second set of issues concerns the proper standards for judicial review of the administrative decision against Lai. A third set concerns the adequacy of the new assurances from China.

            I am trying to obtain the text of the PRC statement containing these assurances. The court last night decided that no stay was needed since, in its view, no serious issues are presented for further judicial consideration and Lai will supposedly not be irreparably harmed by being removed to China. The administrator relied heavily on PRC assurances that Lai would have access to a lawyer, that Canada could send an official to attend any hearing of the case that is held in public, that Canada would be given recordings of all interrogations and proceedings against Lai, and that Canadian officials would be allowed to visit Lai periodically. The court’s opinion is also impressed by these assurances, although ambivalently skeptical in parts and tortuous, and indeed tortured, in various places. It is not clear whether Lai’s brilliant civil liberties lawyer, David Matas, can stave off the removal, which could occur as soon as tomorrow, through further legal maneuvering.

Will Lai get a fair trial?

             Unless the Chinese investigators, prosecutors and judges he will confront dramatically alter their customary practices, Lai will not receive a fair trial by international human rights standards or Canadian criminal justice standards. Two major phases of the trial process need to be considered: 1)pre-trial investigation and indictment; and 2) the trial itself. Since the case is not a new one and there is allegedly a mountain of evidence already compiled and some of his associates have already been convicted, with some executed, there should be no need for an extended investigation period that goes beyond prescribed Chinese criminal procedure limits.       

            In any event those limits are generous. He can be held 30 days before investigators have to seek approval of a formal arrest. Prosecutors can take 7 more days to make their arrest decision. He then can be held for many months before investigators must seek his indictment’s approval from the prosecutors.

            During this two-stage investigative period, he should have the right to counsel, unless the investigators decide that the case involves “state secrets”, but that right is limited in law until the case is considered by the prosecutor for indictment, and it is even more severely limited in practice, so that lawyers are virtually of no help until the prosecutors consider indictment. At that stage, according to law, defense lawyers are allowed to play the full role of a defense counsel, but in practice they are limited in their access to the prosecutors’ evidence, usually cannot carry out their own investigation, do not have sufficient opportunity to meet with their client, and must be very careful not to do or say anything that might be interpreted as persuading the defendant to change the statements he gave to investigators during his months of pre-trial detention. Otherwise the lawyers themselves may well be prosecuted for encouraging perjury, as hundreds have been in recent years.

             In the second, trial stage, the defense lawyer’s role is also restricted. In all but 2% or 3% of PRC criminal prosecutions, government witnesses do not appear in court and are therefore NOT subject to cross-examination. Prosecutors merely read out the pre-trial statements they made to investigators in the absence of defense counsel. Efforts by the defense to introduce their own witnesses, if they can find any willing to testify against the government, are usually rejected by the court as “unnecessary” or even “unfair” (since no prosecution witnesses appear)!

            Most importantly, the trial court cannot make its own decision, since in a case of this prominence it will have to submit its recommendation to court leaders including the court’s “adjudication committee”, who did not hear the case and who may not even have much legal training, but who operate under instruction from the court chief. The court chief himself is a member of the Party “political-legal committee” that operates at the same level as the court and is composed of the chiefs of the police, the prosecutors, the court and the judicial bureau at that level, and is usually headed by the police chief, who outranks the court chief in the Party hierarchy. The Party political-legal committee often tells the court chief how to decide sensitive cases. The higher court above the trial court can also tell the trial court how to decide the case, as can higher Party, government and legislative officials. Surely this would not be a fair trial by any international or Canadian standards.

OF COURSE, IN VIEW OF THE INTERNATIONAL NOTORIETY OF THE CASE, THE P.R.C. MAY DECIDE TO PUT ON A SHOW OF FAIRNESS, BUT THIS WOULD BE SIMPLY A SHOW. 

            Can PRC diplomatic assurances against mistreatment be relied on? Since evidence is not apparently a problem in this case, as mentioned above, the frequent coerced confession scenario involving torture of one kind or another may well be avoided. But this may depend on Lai’s attitude and conduct when in the hands of investigators and as he prepares for trial. The real question is what detailed provisions has the PRC promised to make to assure Canada that there will be little risk of torture before Lai is convicted and during the undoubtedly long period of his prison sentence. What we know so far is not encouraging. Lawyers are unlikely to help much. Audio recordings can be doctored and selectively provided. Access to public heafrins is meaningless when the trial is “secret”. Monthly visits alone are unlikely to help that much, especially if Chinese officials are present during the visit. In any event, he can be severely punished on his return to their custody if it is revealed that he has told visiting Canadian officials of any torture or shown wounds etc. So I am eager to learn what the two governments may have agreed upon in detail.

Conclusion

            This case deserves our attention. Although careful study will be required to reach a definitive assessment, its ending seems to damage the reputation of the Canadian Government and even that of Canada’s generally impressive judiciary, which until now had been patiently struggling with the difficult political and legal issues involved. And I say that having served as an expert witness for the Canadian Government some nine years ago in the first administrative hearing held in this case. I will continue to update our readers as I learn more.

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