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Sh Szh searchosearchs Barnesreports msearchk Barnesreports he Barnesreports a Szh g Szh m Www nsearch thsearcht Barnesreports h Themes re Quickwpthemes is no evidence to suggest Chinese authorities were not transparent, or deliberately left themselves room to impose a conditional death sentence. But a close reading of her reasons, taken as a whole, reveals she was also alert to the wording of the Criminal Law of the People’s Republic of China and, as a matter of fact, there was much evidence from Chinese witnesses before the Board on that subject.
94 The death penalty assurance explains that the Supreme People’s Court has decided not to impose the death penalty on either of the applicants “for all crimes they may have committed before their return back to China.” As the first step to implementing the assurance, the Supreme People’s Court will inform the lower courts not to impose the death penalty on the Lais for their alleged crimes.
95 The second safeguard step is that if the lower courts do impose the death penalty, the Supreme People’s Court, which must approve all death sentence executions, will not approve the death penalty execution in this case. This is spelled out in Article 199 of the Criminal Procedure Law of the People’s Republic of China, which states that “Death sentences shall be subject to approval by the Supreme People’s Court.”
96 Now, the Lais argue that conditional, or suspended, death sentences are reviewed by the Higher People’s Court under Article 201, not the Supreme People’s Court. Because the death penalty assurances in this case refer to Article 199 only, so goes the argument, they do not apply to conditional or suspended death sentences. For the assurances to extend that far, the Chinese government would have had to have sought and received decisions from both the Higher People’s Court and the Supreme People’s Court. The assurances would also have had to refer to both Articles 201 and 199. Because of this, the Lais argue they could be executed if they refuse to confess or implicate people according to the Chinese government’s wishes, because the government would consider such behaviour a crime committed after repatriation. The note only refers to crimes committed before repatriation.
97 This argument is disingenuous and fatally flawed, and runs contrary to Article 50 of the Criminal Law of the People’s Republic of China and Article 210 of the Criminal Procedure Law of the People’s Republic of China. These provisions read as follows:
Article 50
Anyone who is sentenced to death with a suspension of execution commits no intentional crime during the period of suspension, his punishment shall be commuted to life imprisonment upon the expiration of the two-year period; if he has truly performed major meritorious service, his punishment shall be commuted to fixed-term imprisonment of not less than 15 years but not more than 20 years upon the expiration of the two-year period; if it is verified that he has committed an intentional crime, the death penalty shall be executed upon verification and approval of the Supreme People’s Court
Article 210
When a judgment of the death penalty with immediate execution is pronounced or approved by the Supreme People’s Court, the President of the Supreme People’s Court shall sign and issue an order to execute the death sentence.
If a criminal sentenced to death with a two-year suspension of execution commits no intentional offense during the period of suspension of the sentence and his punishment should therefore be commuted according to law on expiration of such period, the executing organ shall submit a written recommendation to a Higher People’s Court for an order; if there is verified evidence that the criminal has committed intentional offense and his death sentence should therefore be executed, the Higher People’s Court shall submit the matter to the Supreme People’s Court for examination and approval.
98 These two provisions make it abundantly clear that the Supreme People’s Court must approve all death sentences, including conditional death sentences when they are to be executed. This has been made even more explicit, if need be, in a Notice from the Supreme People’s Court to the Higher People’s Court (No. 177), dated November 26, 2003, which is found in Exhibit “J” of Winnifred Liu’s affidavit. Moreover, a person will be executed only if he or she commits an intentional crime during the suspension period. Otherwise, the death sentence is automatically commuted to life imprisonment. There was evidence before the PRRA officer that a person refusing to confess does not commit a further crime. This eventuality is addressed in the first part of Article 50, according to which an applicant performing “meritorious service” will see his punishment commuted to a fix term of imprisonment.
99 It is true that Article 199 is the only provision mentioned in the diplomatic note. But I fail to see how this can be read as “irrefutable evidence the assurances do not encompass a conditional death sentence”, to take Mr. Matas’ words. I do not see such an instrument as a complete code of criminal law or procedure. More importantly, a fair reading of the note taken in its totality, as well as its genesis, clearly indicates the Chinese authorities wanted to reassure the Canadian government that the Lais would not be put to death under any circumstances for any crimes committed before their repatriation. There is no other way to read the third paragraph of the diplomatic note and its reference to the judicial practice of Canada relating to death penalty. As a result, it was not patently unreasonable for the PRRA officer to conclude there was nothing “sinister” or “suspect” about how the assurance against the death penalty was worded.
100 As for the argument that imposing a conditional death sentence is cruel and unusual punishment in itself, even if the applicants are not executed, a few things need be said. First, an officer cannot be faulted for failing to consider arguments that were not put to her (Varga v. Canada (Minister of Citizenship & Immigration), 2006 FCA 394 (F.C.A.) at paragraph 17. Second, the PRRA officer never considered whether the imposition of a conditional death sentence amounted to a threat to life, torture or cruel and unusual treatment or punishment because she concluded the note did not allow Chinese authorities to impose a suspended execution sentence. She could have based that conclusion upon a legal analysis along the line of the foregoing paragraphs. However, the evidence supporting such an analysis was put to her, and this is likely why she found there was insufficient evidence to conclude the note was suspect and allowed Chinese authorities to impose a suspended execution sentence (PRRA Reasons, page 39). Third, there is no possibility of the Lais experiencing “death row phenomenon”, or a psychological trauma associated with awaiting an execution which may or may not arrive, once we accept that the assurances foreclose any likelihood of a death sentence being carried out. For all of these reasons, the officer’s conclusion on this argument and, more generally speaking, on the assurance against the death penalty, should be left undisturbed as it does not amount to a patently unreasonable finding.
d) and e) The assurance against torture
101 The applicants have raised two issues regarding the assurance against torture. The first is essentially the same question that was certified by Justice MacKay. The Federal Court of Appeal did not answer the question, however, because it considered it academic to the issue of whether the Lais were Convention refugees, and thus included under the IRPA. In substance, the Lais are asking this Court to determine when an officer must conduct separate assessments of an assurance against death and an assurance against torture. Is a separate assessment mandated when there is evidence of generalized resort to torture, or evidence of torture in similar cases? The Federal Court of Appeal declined to answer that question. However, it explicitly noted the issue could be canvassed at the PRRA stage. Justice Layden-Stevenson then found it a serious issue for the purposes of the Lais’ application to stay their removal order.
102 The second issue relating to the assurance against torture has to do with its reliability. More particularly, the Lais contend that to be effective, the assurance would require monitoring and other mechanisms to test the receiving state’s undertakings. The Lais therefore submit the PRRA officer erred by focusing on the notoriety of their case, without considering whether and how torture could come to the public’s attention, and how their notoriety could protect them if torture or mistreatment was never discovered. I shall deal with these two issues in the same section of these reasons, as they are closely related.
103 The first thing to determine is the applicable standard of review. Not surprisingly, the Lais are of the view that both of these questions attract a standard of correctness as they are general in nature. The first issue calls for an elaboration of the Supreme Court’s reasoning in Suresh, above, on the issue of diplomatic assurances. They claim the second issue is a subset of the first, arguing that if the death penalty and torture assurances must be assessed separately, what, then, is the nature of a separate assessment?
104 The Minister, on the other hand, submits that evaluating the assurance’s reliability is a matter of fact, reviewable on the standard of patent unreasonableness. In light of the PRRA officer’s finding that the assurance was reliable for all of the reasons set out in her decision, they say, it was not patently unreasonable for her to conclude that the absence of a monitoring mechanism did not undermine its reliability. With respect to the issue of a separate assessment, the Minister submits this issue simply does not arise — first, because it is always required, and second, because this is precisely what the officer did in this case.
105 There is no doubt in my mind that evaluating the reliability of a diplomatic assurance is a question of fact, reviewable on the standard of patent unreasonableness. It is indeed part of the assessment as to whether a failed refugee claimant faces a substantial, forward-looking risk of torture if removed to his country of origin. In both Ahani, above, and Suresh, above, the Supreme Court made this point clear. Reviewing the Minister’s decision on whether Mr. Suresh faced a substantial risk of torture upon deportation, the Court wrote that the Minister’s review of an assurance from a foreign state is a fact-driven inquiry with a “negligible legal dimension” (Suresh, above, at paragraph 39). This was reiterated by the British Columbia Court of Appeal in Thailand v. Saxena, 2006 BCCA 98 (B.C. C.A.) at paragraphs 47-48, and by this Court in Mahjoub v. Canada (Minister of Citizenship & Immigration), 2006 FC 1503 (F.C.) at paragraph 11.
106 Bearing that in mind, the applicants’ attempt to frame the issue of monitoring as a legal question must fail. At the end of the day, the threshold question is whether there is a substantial risk that the Lais will be tortured or mistreated in China. To answer that question, the PRRA officer had to take a number of factors into consideration. The diplomatic note was only one of those factors – though a critical one, as we shall see. The presence or absence of a monitoring mechanism was itself one of the indicia to assess the reliability of the assurance given. By concluding the absence of a monitoring mechanism was not determinative, the PRRA officer made a finding of fact.
107 Of course, in coming to that conclusion the PRRA officer may be taken as having implicitly denied that some kind of monitoring is always required for an assurance to be reliable. As we shall see shortly, views have been expressed in the recent past about the proper use of diplomatic assurances against torture and what they should encompass. In her reasons, the PRRA officer did indeed refer to various proposals and statements made by non-governmental organizations, human rights activists and UN specialized bodies. But none of these views have so far crystallized in international law. The closest expression to an international norm is the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the UN General Assembly on December 18, 2002. Though it entered into force on June 22, 2006, it has not been ratified by either Canada or the People’s Republic of China. And there is no evidence before me that it is now part of customary international law.
108 In any event, the PRRA officer did not discuss this broader issue and restricted herself to assessing this particular diplomatic note. In response to the applicants’ argument on this point, she wrote at page 35 of her decision: