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The law forbids prison guards from extorting confessions by torture, insulting prisoners’ dignity, and beating or encouraging others to beat prisoners; however, police and other elements of the security apparatus employed torture and degrading treatment in dealing with some detainees and prisoners. Officials acknowledged that torture and coerced confessions were chronic problems and began a campaign aimed at curtailing these practices. Former detainees credibly reported that officials used electric shocks, prolonged periods of solitary confinement, incommunicado detention, beatings, shackles, and other forms of abuse.
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During the year police continued to use torture to coerce confessions from criminal suspects, although the government made efforts to address the problem of torture. A one-year campaign by the Supreme People’s Procuratorate (SPP) to punish officials who infringed on human rights, including coercing confessions through torture or illegally detaining or mistreating prisoners, ended in May. The campaign uncovered more than 3,700 cases of official abuse.
128 It is in the context of these findings that one must look at the diplomatic assurance against torture or mistreatment. The Minister argues the assurances were sought as a cautionary measure, that the note was just another piece of evidence for the officer to use when assessing the risk of torture or mistreatment. According to the Minister, the fact that Canada raised the issue of an assurance against torture when discussing the assurance against the death penalty does not establish the Lais would have been at a substantial risk had the request not been made. As a result, the onus remained on the Lais to satisfy the PRRA officer on objective grounds that they would more likely than not be tortured or mistreated in China. The Minister claims they did not meet that burden. Even if I were to find the officer erred by concluding the assurance against torture was reliable, the Minister submits the overall decision should stand because this was not a critical finding.
129 While this may look like an appealing argument at first sight, I do not find it persuasive. Indeed, it appears from the structure of the officer’s reasoning that she balanced evidence of the widespread use of torture China against the assurances, concluding the Lais would not be tortured because of the assurance. At page 20 of her decision, she wrote:
I have made a separate assessment of the assurances against torture. I note that consideration of an application for protection has to be made keeping in mind current documentary evidence, but also putting it in proper context. The evidence before me has a great deal to say about the troubling existence of torture used by Ministry of Public Security officials, despite China’s being a signatory to the Convention Against Torture. On the one hand, Canada has been given assurances that no death penalty will result should Lai Cheong Sing be removed to China, nor will torture be enacted against him. Against this backdrop is public source information about the use of torture to coerce confessions out of suspects.
130 Equally relevant is that a good portion of the officer’s final summary of her findings focused on the assurances and their reliability regarding torture (PRRA Reasons, pages 34-38). A close reading of that summary reveals the officer clearly attached great weight to the assurances. While I have already cited the following excerpt from page 35 of the officer’s decision, I reproduce it again for convenience:
Counsel appears to be conflating his view of the noted deficiencies in Chinese law and practice with his opinion that the diplomatic note will not be sufficient to protect the applicants from either the death penalty or torture. I find, based on my consideration of the evidence, that the Government has the ability to ensure that the full terms of the diplomatic note will be abided by, in other words, that neither of the applicants will face either the death penalty, or a suspended death sentence, or be subjected to torture, or cruel and unusual mistreatment or punishment. I do not agree that the absence of a mechanism to monitor the compliance of the Chinese government with the terms of the note is to be interpreted as rendering the note itself unreliable. Having regard to the nature and format of the diplomatic assurance, the correspondence that took place between Canadian and Chinese representatives to establish the terms of the assurance, and the identity of the applicants, I do not accept counsel’s argument that I should dismiss this diplomatic assurance on the basis that its terms cannot be guaranteed without some kind of diplomatic sanction behind it or a mechanism to monitor its compliance.
131 In short, the Minister’s argument simply does not reflect the substance of the PRRA officer’s reasons. To accept it would distort the officer’s reasoning and findings. The assurances were clearly central to her assessment of the risks mentioned in section 97 of the IRPA, and I have not been convinced that she would have come to the same conclusion had there been no diplomatic note. As a result, I must carefully review what she said about those assurances to determine whether she erred or not, as it plainly had an impact on her ultimate decision.
132 Now, what did the officer have to say about the diplomatic note and the assurances found therein? I have already summarized her main findings at paragraph 38 of my reasons. It is worth emphasizing, however, that she was well aware of the flaws and pitfalls inherent in diplomatic assurances and of the criticisms and warnings leveled by a number of human rights organizations with respect to the use of these notes. Indeed, the officer started her analysis with a quote from a Human Rights Watch report released in April 2005, entitled “Developments Regarding Diplomatic Assurances Since April 2004″. The report includes a disparaging critique of the Board’s decision in the Lai case (Tribunal Record, vol. 4, page 1071; PRRA Reasons, pages 9-10).
133 But more importantly, in her summary of findings, the officer also referred to a joint report issued by Amnesty International, Human Rights Watch and the International Commission of Jurists (the Joint Report). The Joint Report calls upon member states of the Council of Europe to reject any proposals to establish minimum standards for the use of diplomatic assurances against the risk of torture (“Reject rather than Regulate”, December 2, 2005; Tribunal Record, vol. 1, pages 170-223). According to the Joint Report, diplomatic assurances are not an effective safeguard against torture. Furthermore, they violate the absolute prohibitions against torture and against forcibly sending a person to a country where there are substantial grounds for believing that he may be subjected to these treatments. She also noted the essential argument against diplomatic assurances is that they are, in and of themselves, an acknowledgement that a risk of torture exists in the receiving country, and that a signatory to the Convention Against Torture has no reason to have to guarantee that no such mistreatment will occur.
134 While conceding that these were strong arguments, the officer nevertheless found these considerations were offset here by the international publicity surrounding the Lais’ case. She wrote, at pages 36-37 of her decision:
I have noted the report’s conclusion that any such assurances are inherently unreliable as they are founded on trust that the receiving state will uphold its word when there is no basis for that trust. I find that while these considerations are well-received, they do not factor in other elements germane to the issue, such as, for example, the media interest in the applicants, the fact that a representative of the People’s Republic of China was the first to broach the idea of offering an assurance that later became a diplomatic note, the disclosure to the media and to the public in general, both in Canada and China and internationally of the existence of such an assurance, and China’s own position and placement in the world.
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