Update reference: ITCL, Chapter 10
The Globe & Mail is reporting today that China has offered diplomatic assurances to Canada, in the case of alleged smuggler Lai Changxing, that Lai will not be tortured--and that Canadian officials will be given regular access to ensure this promise is kept. He is also guaranteed access to counsel and Canadian diplomats will be allowed to attend his trial. Lai's lawyer, well-known human rights barrister David Matas, is quoted in the story as calling these assurances "unique, and a significant development globally, in terms of human rights."
This is, of course, but the latest development in Lai's long-running efforts before the Federal Court to avoid deportation to China. He won a stay of deportation from the Federal Court back in 2007, and the government of China has been working diligently ever since, trying to get the stay order removed. Some background can be found in the decision of Justice de Montigny, which granted Lai's application for judicial review of the government's pre-removal risk assessment (PRRA) decision.
First to the credibility issue: should Canadians be confident that Lai can safely be returned under the diplomatic assurances China has offered? In his submissions on the new PRRA, Matas paints a compelling case that we should not. China's record of adhering to basic human rights norms in its criminal process is notorious, and arguably beyond redemption--particularly in high-profile cases like this, where the government suffered embarassment because of Lai's activities.
Various international human rights bodies and NGOs, including the UN's Special Rapporteur on Torture, UN Human Rights Commissioner Louise Arbour (as she then was) and Human Rights Watch, have found that diplomatic assurances from torturing states are usually not worth the paper on which they're printed. It is one thing to provide assurances against the death penalty (though China has broken even these agreements in the past), but entirely another to promise not to torture. The detainee can be pressured and "prepared" for the visits of the foreign diplomats in the background, so that the torture can be hard to detect. Doubly so for psychological torture.
And what if Canadian officials become convinced that China will breach the agreement? What exactly can be done? A diplomatic protest, to be sure. In fact, in this very case Canada has already had cause to lodge such a protest, when Chinese security agents came into Canada posing as diplomats. China took the protest in stride. We can't expect much better from the likely-inevitable unfortunate consequences for Lai if he is deported. In his brief, Matas has a very effective last word on this point:
"These exceptions would not be necessary if the rule were not otherwise. If there were no torture, if there were a right to counsel, if trials were public, if foreign nationals had a right to meet with their embassy officials, the assurances would not have been necessary. In assessing the likelihood of compliance with this assurances, one must keep in mind that all the protections promised to Mr. Lai are also protections the Government of China has promised to the international community at large through the Convention against Torture, which China has signed and ratified, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, which China has signed but not ratified.
The assurances are in effect saying to the Government of Canada that, when it comes to torture and fair trial, we lied to you before when we said generally we would not mistreat anyone; therefore we are repeating to you these promises for Mr. Lai in particular. It is difficult to give much credence to such promises."
On the other hand, there are some salutary aspects to this whole mess. The government of Canada deserves credit for negotiating the agreement in the first place, as it is the kind of practice which puts pressure on human rights-abusing states to up their standards, if only to secure the criminal cooperation of civilized states (yes, I realize that's a loaded term, and I'm using it deliberately). I don't think Matas is quite correct in calling this particular agreement "unique," in that Canada and other states have negotiated similar instruments before (see, e.g., Thailand v. Saxena, 2006 BCCA 98). But I do think it's significant, as western states finally begin to withdraw from the 9/11-inspired enforcement and rendition agenda.
For Canada's part, deporting someone to face torture or mistreatment would violate Canada's obligations under the Torture Convention and the Refugees Convention. There is also an argument that it would violate the ICCPR and whatever freestanding rights Lai and others like him have under customary international human rights law. Negotiating an agreement like this constitutes state practice that confirms all of these obligations.
Canadian courts sometimes shy away from engaging with these international law issues. It's good to see our diplomats and criminal justice personnel engaged on them, however implicitly.
