151 At the hearing, there was much debate around subparagraph 97(1)(b)(iii) of the IRPA and whether it is triggered as soon as somebody is sentenced to life imprisonment. According to the applicants, putting somebody in prison for life is in and of itself cruel and unusual treatment, and it can only be justified if it is incidental to lawful sanctions and if those sanctions are not imposed in disregard of international norms. This position, it seems to me, is at odds with the reasoning of the Supreme Court of Canada in R. v. Smith, [1987] 1 S.C.R. 1045 (S.C.C.) at paragraph 54, where the Court stated that “[s]ection 12 [of the Charter] will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.” That being said, I am of the view that this debate is a red herring in the context of this case. Whether the shortcomings of the Chinese legal system have to be assessed against international standards, as the Lais would have it, or whether they must be factored in the threshold analysis required to determine if they would be at risk of unusual treatment in the first place, is irrelevant here. To the extent that similarly situated individuals have not been exposed to these flaws when facing their trials, the issue just does not arise.

152 Finally, the Lais submitted that their trial would not be a run of the mill criminal trial. While some of it may admittedly be fair, it will be highly politicized. Relying on the 2005 U.S. Department of State Report for China and on a document prepared by the Canadian Department of Foreign Affairs and International Trade (Record of the Applicants, pages 146-149), they submitted that courts are not independent from the government in those cases where the political authorities have an interest, as is the case here. The short answer to that claim is that it was duly considered by the officer and rejected unequivocally. She stated, at pages 40-41 of her reasons:

On the issue of whether conviction of the applicants is assured, I find this assertion to be without support. The evidence before the Board regarding the applicants’ suspected involvement in criminal activities, that is, smuggling and bribery, came from different sources, not merely confessions that counsel submits were coerced by torture or the threat of torture. Those other sources included material evidence gathered from Lai Cheong Sing’s office building and witness testimony. To conflate the intent of the Chinese authorities in attempting to return the applicants to face Chinese law and justice with the supposition that the applicants have already been convicted, and/or will be unable to obtain or confer with defence counsel, and/or will be unable to obtain a fair trial, is not supported by the evidence.

Counsel’s evidence regarding Guo Guoting would appear to be directly relevant regarding the treatment of defence counsel by authorities, however, I note that Mr. Guo’s own evidence is that he came into conflict with the authorities in seeking to defend Falun Gong practitioners, human rights activists, and other defence lawyers, and now has himself been targeted for this reason. As noted previously, I do not award significant weight to Guo Guoting’s evidence as it relates to Lai Cheong Sing and Tsang Ming Na. Mr. Guo’s evidence is that he served as defence counsel to human rights defenders, “political criminals” and Falun Gong practitioners, none of which I find describes the applicants. I note in particular no objective evidence to corroborate any political dimension to the Chinese government’s interest in the return of the applicants to face criminal charges. While I note Mr. Guo’s evidence that defence counsel are at risk of themselves being charged for taking on politically tinged cases, in this situation I give more weight to the evidence of Zhou Bing Zhi, a defence lawyer who represented two defendants in the Yuan Hua trials (one an appeal case) and testified that he had himself felt no political pressures or threats in representing his clients.

153 As I have already indicated, the officer’s finding on the nature of the trial the applicants would receive in China was a factual finding subject to review on the standard of patent unreasonableness. Based on the evidence before her, the officer’s finding on the nature of the trial the applicants face was not patently unreasonable.

154 The Lais’ final argument can be disposed of rather quickly. Mr. Matas had submitted that relatives of Tsang Ming Na (her mother, Cai Xiu Meng, and the girlfriend of her brother, Zhuang Shao Cheng) were convicted and jailed because they arranged for money which belonged to the applicants to be transferred to them for the purpose of paying their legal fees in Canada. In the applicants’ view, this was evidence that anyone associated with them would face sanction and punishment. The PRRA officer rejected that contention, and found these convictions “were ones of general application, and not ones that bespeak of forward-looking risk to the applicants” (PRRA Reasons, page 28).

155 The Lais argued that the officer erred in relying on the concept of law of general application, because it only relates to the Convention refugee definition under section 96 of the IRPA, not to the grounds for protection the officer was considering there. The relevant inquiry is set out in section 97(1)(b)(iii) of the IRPA, and should have been whether the risk the applicants face is or is not inherent or incidental to lawful sanctions, and if it is, whether the risk is nevertheless imposed in disregard of accepted international standards. While the officer did state that the conviction and jailing of Tsang Ming Na’s relatives were “not imposed in disregard of international standards”, so runs the argument, she did not consider those standards and therefore failed to have regard to the material before her and to exercise her jurisdiction (PRRA Reasons, p. 40).

156 I believe this argument is without merit, essentially for the reasons raised by the respondent. First of all, it is not accurate to say that the officer applied the wrong test in relying on the concept of law of general application. Though the convictions of Ms. Tsang’s relatives were relevant to the applicants’ overall risk assessment, there was no particular way in which that evidence had to be assessed. Moreover, the officer did, in fact, consider the convictions of Ms. Tsang’s relatives for “harbouring a fugitive” under Article 310 of the Criminal Law of the People’s Republic of China and did find that these convictions were not in violation of international standards. Having reviewed the judgment of the Chinese court in that case, she found Ms. Tsang’s relatives were represented by counsel, who presented arguments at an open trial, that they pleaded guilty and that they were given credit at sentencing for their time in custody awaiting trial (PRRA Reasons, pages 28-29, 40). As a result, she concluded the relatives’ convictions were arrived at pursuant to a law of general application that did not violate international standards and was not imposed in violation of international standards and did not bespeak of forward-looking risks to the applicants.

157 The Lais would have it that Article 310 of the Criminal Law of the People’s Republic of China is contrary to the International Covenant on Civil and Political Rights, which both Canada and China have signed and ratified, and which provides that everyone shall be entitled to legal assistance when facing a criminal charge. Since Ms. Tsang’s relatives were merely trying to help the Lais pay their legal fees, they argue, their conviction was clearly a violation of international standards.

158 I do not find this argument very compelling. There is no evidence to the effect that the money was provided for the only purpose of covering the legal fees of the applicants. But even more to the point, it is the act of providing money to fugitives that is the offence under Article 310, irrespective of what the fugitives say they want the money for. It cannot be said, therefore, that Article 310 criminalizes legal assistance.

159 Finally, the Lais themselves do not face prosecution under Article 310. The officer nevertheless considered the facts giving rise to the convictions of Ms. Tsang’s relatives in her overall risk assessment of the Lais’ case, together with their argument that the convictions meant the Lais would be denied defence counsel. She found that they did not support a finding that the Lais would be unable to access their legal privileges and rights if returned to China. These are factual findings reviewable on the standard of patent unreasonableness. On that basis, I am not convinced the officer made a reviewable error.

160 For all of the foregoing reasons, I shall therefore grant the application for judicial review. In coming to that conclusion, I do not doubt the good faith of the Chinese Government nor do I want to cast aspersion on those officials who were instrumental in the drafting and issuance of the diplomatic note. The role of this Court, in reviewing decisions made by PRRA officer, is not to pass judgment on foreign countries’ record, but only to determine if the decision under review is consistent with Canadian law. In the case at bar, I have concluded that the PRRA decision, though well reasoned and quite comprehensive in its assessment of the facts and of the submissions made by both counsel, is deficient in its assessment of the risk of torture.

THIS COURT ORDERS that the application for judicial review is granted, and the Court certifies the following questions:

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?

FN*. A corrigendum issued by the court on May 2, 2007 has been incorporated herein.

P Juan 1

December 21, 2009

赖昌星(Juan 1)

时间越久，翰昌星烙在公众心里的印记越深，甚至因此动
摇着人们的法律信仰。
引渡赖昌星的法律信仰考验
.文/梦周生
作密简介:梦圈生，财经评论员

赖昌星最近又成为了热.汽人物。根据4月20日的拘留聆讯纪录，加拿大边境服务