2/15/2009

Translation: Is Canada Double Dealing in the Lai Changxing Case?

From the pages of this week's Southern Weekly comes an article that summarizes the Lai Changxing case I mentioned last week. To gain perspective on the case and practice my Chinese, I have translated it here, however poorly, for future reference. According to the article, the Chinese-Canadian author, Vincent Yang L.L.M. PhD, is a professor at Shantou University and a senior researcher at the Canadian International Centre for Criminal Law Reform and Criminal Justice Policy at the University of British Columbia. He has been called upon several times in the proceedings of the Lai Changxing case as an expert witness. The article is quite lengthy, so I have hidden it behind a cut. Click "Read more right here" to read the rest of the article. In an accompanying cartoon, Lai Changxing reads the classifieds.
From Deportation Order to Work Permit
Is Canada Double-Dealing in the Lai Changxing Case?
Special Guest: Professor Yang Cheng

As Canadians see it, there is no reason why someone accused of crimes overseas should starve to death on the street. Give them a work permit so that they can provide for themselves and lessen the burden on the Canadian taxpayer.

If they only had Lai's "repatriation and risk assessment" in mind, the decision of which has so far been unable to persuade the courts that Lai faces no risk on return. Instead, it was primarily Lai's long time already spent in Canada that turned the decision in his favor.

After nearly 10 years in Canada, the suspected head of a smuggling ring based out of Xiamen, Lai Changxing, received a work permit. An uproar followed.

Lai Changxing is neither an immigrant to Canada, a refugee, nor does possess any extraordinary talents. He is a longtime internationally pursued criminal whom the Canadian government has previously brought deportation charges against as a foreign criminal. Why has Canada granted this kind of unwanted foreigner a work permit? Does this signify that just because of the long time time Lai Changxing has already spent in Canada he can continue to stay? Lai's case is lodged in which sticking point?

Why was the Canadian government unable to carry out the extradition?

The Canadian government granted Lai a work visa complying with the "Immigration and Refugee Act." According to article 206, foreigners who have already entered Canada and if they are unable to support themselves due to lack of work, there are two circumstances in which they may receive a work permit. One: if they have already applied for refugee status but the government has not yet ruled on their application. Two: if they have been denied refugee status but the government for whatever reason has been unable to carry out the deportation proceedings.

Obviously, the government's reason for granting Lai Changxing the work permit at this time was the second circumstance. Then why was it they were unable to carry out the deportation?

When Lai was arrested in 1999, the Canadian government sought his deportation and extradition. Since 2001, Lai has been in court against the Canadian government, which despite meeting with failure time after time, has managed to put his deportation proceedings on hold for a sufficient amount of time.

In 2006, the Canadian Supreme Court returned their ruling on the suit, ruling against Lai's appeal for "political refugee" status. When the decision reached the hands of the Ministry of Citizenship and Immigration, it should have followed with the restarting of the deportation procedures. According to the regulations of the Canadian Immigration and Refugee Protection Law, the Ministry of Citizenship and Immigration which had previously dealt with Lai Changxing's deportation should assign an analyst to carry out a "repatriation and risk assessment" on him. Only after the assessment had confirmed that he would not face the risk of execution or torture in China could the extradition proceed.

In March 2006, the Ministry of Citizenship and Immigration's assessment was concluded. They found that Lai Changxing would not face these risks after returning to China. Just at this juncture, Lai's lawyer (translator's note, David Matas, the noted human rights advocate) filed an injunction to again halt the extradition, criticizing the Ministry of Citizenship and Immigration's assessment as unfair. That put into motion a "judicial reconsideration".

Then, in 2007, the highest Canadian Federal Court adjudicated that the Ministry of Citizenship and Immigration could not properly say that Lai would not face torture or execution in China. From the result of this decision, the court placed in doubt not just the ruling of the immigration board, but of all the other Federal Courts' decisions on Lai's case.

In the the practice of the common law system of Canada, the independence of the judiciary from the government administration is of the utmost importance. At this point, the Canadian Ministry of Citizenship and Immigration considered whether to appeal the decision, but ultimately decided to drop the matter, instead relaunching the "repatriation and risk assessment" process. However, to this day, if anyone has been working on, or completed this assessment, it has yet to be announced. Because of this, the government is incapable of carrying out extradition procedures against Lai and he has been able to continue living in Canada to this day.

The background of the judicial logic of this "work permit"

Since Lai Changxing has received his work permit he has expressed to the media his desire to "work hard and pay his debt to Canada." This claim seems rather absurd, but it inadvertently draws attention to the "legislative intention" of Canadian law.

Many netizens have spoken out saying that this cases shows that Canadian law should be altered so that it does not allow international fugitives to received work permits. But in reality, the Canadian legal system's design and function has the perspective that considers "criminals are also people." The way Canadians see it, a crime committed in a foreign country shouldn't consign a person to die of starvation on the streets of Canada. If the case of this person is delayed too long and they have no source of income, then they can be considered for a work permit. In this way, they can provide for themselves and lessen the economic burden on the Canadian taxpayer.

Canada set up this kind of legal system on the basis of the consideration of humane principles and the domestic welfare. In this situation, there is no alternative. Of course, any legal system can be abused. This kind of system can be abused and Canada must examine the particular circumstances of every case. From the reality of how the system operates from circumstance to circumstance, it can be seen what the government should do. If they discover that the fugitive criminal has scads of money to live on, then they cannot grant him a work permit. From this logic, we can deduce that since the Canadian government has granted Lai Changxing a work permit, they must believe that his quality of life has already entered into appropriate economic hardship that access to work is necessary.

In China, Lai Changxing is truly believed to be amongst the richest of criminals. But the amount of wealth that he brought with him to Canada was actually extremely limited and those funds were frozen by the government. His family has now lived in Canada for around a decade, during which he has retained a lawyer at great expense.

In the media's reporting, Lai Changxing has been shown to life a life of wealth and comfort in Canada, coming and going to all sorts of high class establishments. Because of this, not many people believe that he really faces economy hardship in Canada. They are querying whether the Canadian government really investigated Lai Changxing's assets.

But in reality, if there's not much efficacious "international help", whether for the Canadian or Chinese government that can determine his assets if they are hidden in a 3rd country or a hidden offshore bank account. If Lai Changxing has money not in Canada but elsewhere, it is going to be truly difficult for the Canadian government to investigate it. And even if they do, they don't have a clue where to look. Even if they did have a clue, likely they would find the third party unwilling to cooperate. I fear there is nothing that can be done.

Because of all of this, regardless of what the law says, in reality China, Canada and other countries need to work together to investigate Lai Changxing's assets.

Legally speaking, while Lai will receive a work permit, it does not mean that the Canadian government has granted refugee status or in any way intends to change their plans to deport him in the future.

But since there still exist such vast differences between the legal systems and cultures of the two countries, the bilateral process of extraditing a criminal faces many obstacles. In 1994, a treaty was signed for judicial aid, but to this day there is no extradition treaty between China and Canada. For the Ministry of Immigration, this poses layer upon layer difficulties.

Practically speaking, there is only one reason why Lai Changxing has been able to remain in Canada. It is that Canadian courts and officials lack understanding of and confidence in the Chinese legal system.

In August 2008, Canada extradited fraudster Deng Xinzhi back to China to face charges. This case was swiftly dealt with by Canadian authorities, because there was no possibility that he might face the death penalty in China. Moreover, Lai Changxing could very well face the death penalty for the charge of smuggling. Even if China has offered a solemn promise that he will not face execution, his lawyer can appeal to the notions that China can still not be trusted.

At the same time, we have no sign that there is much understanding of China from the Canadian bureaucrats assessing Lai Changxing's repatriation risks. It really isn't easy. The Western media often concentrates on the defects of the criminal system in China, leading Canadian officials to naturally be prejudiced against the Chinese legal system and it will be hard for change to be forthcoming in the short-term.

This time, Lai Changxing was able to recieve a work permit because he appeared to suffer money problems and primarily because his case had been delayed so long in Canada. From these reasons, it is reasonable to query the government's decision. For example, since the overturn of his pre-extradition risk assessment, the regulations would call for that assessment to be redone, something that should have been completed with six months. If to this day, this assessment has not been completed, or has practically been abandoned, how can it be said clearly that Lai faces risks after extradition to China? It seems that Lai Changxing has suceeded in staying in Canada. The government has spent countless resources and over eight years with difficulty reaching a series of rulings all in the cause of attempting to carrying out an ineffective law.

Lai Changxing's case is a true headache for the Canadian government. If after ten years of this case going back and forth, over and over again, the result is that Lai Changxing gets to live legally in Canada, how are ordinary folk to sort all this out?

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