Are We Getting Too Cozy With China?
By Michael Christopher Ly
On 13 September 2016, the Federal government of Canada announced that it has commenced high-level dialogue on national security and the rule of law with China. The ongoing discussions would be a mechanism for consultations concerning judicial and law-enforcement cooperation, with the objective of addressing counter-terrorism, cyber security and combatting cybercrime, combatting transnational organized crime, law enforcement issues, consular issues, judicial cooperation and exchanges on rule of law. [1]
The dialogue however is not without controversy. China has an unjust legal system that has issued death sentences after unfair trials.[2] The Toronto Star reports that Amnesty International and Human Rights Watch are questioning the dialogue’s near-term objectives, specifically Canada’s pursuit of an Extradition Treaty and a Transfer of Offenders Treaty with China. [3]
Canada has a framework of laws and policies to prevent torture and the elimination of cruel, inhuman and degrading treatment or punishment. Notable legal and operational measures include the Canadian Charter of Rights and Freedoms, the Criminal Code, the Immigration and Refugee Protection Act, the Extradition Act, and the Corrections and Conditional Release Act (CCRA).[4] The Minister of Foreign Affairs has also stated that Canada would begin a process to join the Optional Protocol to the Convention Against Torture (OPCAT).[5] The OPCAT provides for the establishment of “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment”.[6]
Although its appears that Canada has been making developments for the protection and promotion of human rights, an Extradition Treaty and a Transfer of Offenders Treaty with China may be a step in the wrong direction. There are significant differences in the ways in which the two countries treat human rights advocates, and the stark contrasts between China’s Criminal Law and Criminal Procedure Law and Canada’s Criminal Code may be a telling sign of the trouble to come if Canada gets too cozy with the world’s top executioner.[7]
In the first of a three-part series, we will begin by analyzing Canada and China’s commitment to the United Nations Convention against Torture (CAT), with a particular focus on China’s criminal law system. Subsequent articles will focus on the differences between the legal systems of the two countries through a criminal law lens.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
The CAT is an international human rights treaty that aims to prevent torture and other cruel, inhuman, or degrading treatment or punishment. The United Nations General Assembly adopted the CAT on 10 December 1984 and it came into force on June 26, 1987.[8]
Article 1.1 of the CAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession”. [9] Article 2 of the CAT requires its parties to take measures to prevent torture under their jurisdiction, and Article 3 forbids states to transport people to any country where there is reason to believe they will be tortured.[10]
Amongst the 83 CAT signatories,[11] Canada signed the CAT on August 23, 1985, [12] and ratified it on June 24, 1987, while China signed the CAT on December 12, 1986, and ratified it on December 8, 1987.[13] Despite this, there are many concerns that torture and other cruel punishment continue to be prevalent in situations where authorities deprive individuals of their liberty in China.[14]
China: Torture and Forced Confessions
Amnesty International has raised ample evidence of problematic state action by the Chinese government in connection with the death penalty. China is statistically the world’s top executioner, but what is more concerning is the true extent of the use of the death penalty in the country. Amnesty International claims that the execution data is considered a state secret, and the official figure of 1,634 executions in 2015 excludes thousands of executions believed to have been carried out in China.[15]
There are also concerns about a number of issues with the Chinese government, including the exclusion at trial of evidence obtained through torture as well as arbitrary detention where there is a high probability of torture and other ill-treatment.[16]
The Chinese government itself has acknowledged the extent of these problems and has allegedly increased attempts to address it. Nevertheless, in a country where the fundamental problem remains at the police authority level, in combination with a criminal justice system that is heavily reliant on forced confessions,[17] critics are chastising the Chinese government for having done little to change the country’s deep-rooted practice.
In the next article, we will delve into state punishment in China by analyzing its Criminal Law and Criminal Procedure Law, with a focus on the death penalty of the ‘principal punishment’ regime.[18]
[1] Office of the Prime Minister, “Terms of Reference: Canada-China High Level Dialogue on National Security and the Rule of Law”, September 2016, online: http://pm.gc.ca/eng/news/2016/09/13/terms-reference.
[2] Amnesty International, “Death Penalty,” (2015), online: https://www.amnesty.org/en/what-we-do/death-penalty/.
[3] Blanchfield, Mike, “Canada Looking at Extradition Talks with Chinese,” Toronto Star, 20 September 2016, online: https://www.thestar.com/news/canada/2016/09/20/canada-looking-at-extradition-talks-with-chinese.html.
[4] UN Universal Periodic Review, “National Report – Canada,” August 2016, online: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fCAN%2f7&Lang=en.
[5] Canadian Civil Liberties Association, “Canada to Join Critical Anti-Torture Protocol”, 3 May 2016, online: https://ccla.org/canada-to-join-critical-anti-torture-protocol/.
[6] UN Office of the High Commissioner, “Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,” (2016), online: http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCAT.aspx.
[7] Amnesty International, “Death Penalty 2015: Facts and Figures,” April 2016, online: https://www.amnesty.org/en/latest/news/2016/04/death-penalty-2015-facts-and-figures/.
[8] UN Office of the High Commissioner, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” (2016), online: http://www.ohchr.org/en/ProfessionalInterest/pages/cat.aspx.
[9] Ibid.
[10] Ibid.
[11] United Nations Treaty Collection, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, (2016), online: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&clang=_en.
[12] Government of Canada, “Reports on United Nations Human Rights Treaties,” (2016), online: http://canada.pch.gc.ca/eng/1448633333956#a5.
[13] Human Rights in China (HRIC), “China and the CAT,” (2016), online: http://www.hrichina.org/en/china-and-cat.
[14] Amnesty International, “China: Torture and Forced Confessions Rampant Amid Systematic Trampling of Lawyers’ Rights,” November 2015, online: https://www.amnesty.org/en/latest/news/2015/11/china-torture-forced-confession/.
[15] Supra note 5.
[16] Supra note 14.
[17] Amnesty International, “No End in Sight,” November 2016, online: https://www.amnesty.org/en/documents/ASA17/2730/2015/en/.
[18] Jianfu Chen, “Criminal Law and Criminal Procedure Law in the People’s Republic of China”, (Leiden: Koninklijke Brill, 2013) at 29.
