As Lai’s Time Runs Out, Torture Probe Drags On

As Lai's time runs out, torture probe drags on

VANCOUVER From Thursday's Globe and Mail
Last updated on Thursday, Aug. 13, 2009 10:10AM EDT

Does high-profile fugitive Lai Changxing face a risk of being tortured if he is deported to stand trial in China on charges of masterminding a huge consumer-goods smuggling operation?

The question lies at the heart of Mr. Lai's bid to remain in Canada. But more than two years after a Federal Court judge ordered immigration officials to take a second look at the torture threat, Mr. Lai is still waiting for the result of their renewed investigation.

David Matas, Mr. Lai's lawyer, says such a lengthy wait for a document known as a pre-removal risk assessment is unprecedented in his experience.

“I don't know what's going on. It's a confidential process that takes place behind closed doors,” Mr. Matas said yesterday.

“Obviously, it's worrisome, but a delay is better than a no,” he said, referring to a finding that there is no risk of torture.

In his landmark 2007 ruling, Mr. Justice Yves de Montigny rejected Citizenship and Immigration Canada's first risk assessment that accepted Chinese assurances Mr. Lai would not be tortured if sent back for trial.

The judge called that conclusion “patently unreasonable,” given the widespread existence of torture within China's criminal justice system.

The ministry did not provide a response by the end of the day.

Mr. Matas was commenting a day after Mr. Lai, in an interview with The Globe and Mail, acknowledged using loopholes in Chinese law to avoid paying customs duties.

But Mr. Lai argued he cannot receive a fair trial in China, because Chinese leaders have already pronounced his guilt, the expected punishment is far out of proportion to what took place and the media are not free to report on the case.

Jerome Cohen, a leading international expert on Chinese law called by Citizenship and Immigration Canada as an expert witness at Mr. Lai's refugee hearing, agreed that Mr. Lai may find it tough going in China.

Asked about the chance of a fair trial for the onetime millionaire, Prof. Cohen replied: “Assuming that we are talking about current international standards, I would have to say the prospects are very dim.”

He said China, rather than moving forward, is in the middle of a more conservative, hard-line approach to justice and human rights. “They've been going backwards in recent years.”

Prof. Cohen, an author of hundreds of articles, books and scholarly studies on China's justice system, is a professor of law at New York University.

He said he believes the Chinese government will abide by its commitment not to execute Mr. Lai, but he was less sanguine about the threat of torture.

Torture continues to be used to exact confessions in criminal cases, Prof. Cohen said.

To alleviate the risk, he said Canada should work out a hands-on monitoring system to eliminate the prospect of physical harm to Mr. Lai, considered China's most-wanted fugitive and an irritant to Canada-Chinese relations.

“I don't know if Canada has proposed that to China, but I suggest such an agreement would be very helpful in cases like this,” Prof. Cohen said. “If China wants this guy so badly, I'm sure [such a deal] can be done. … I don't know why it hasn't happened. … China can be very practical when it wants to be.”

Mr. Matas, however, was skeptical that China will ever agree to let Canadian officials into its prisons to check on Mr. Lai's welfare. “If they did it for Mr. Lai, they would have to do it for other prisoners. And why would they let the Canadian government in, when they don't even give the Red Cross access?”

He said Canadians understand that while Mr. Lai has admitted to tax evasion, it is not a crime deserving of death or torture. And Mr. Lai's depiction of his activities does not correspond at all with the detailed accusations of Chinese authorities, Mr. Matas contended. “All they had was a theory, and then they tailor everything, including forced confessions from friends, family members and employees, to fit,” he said. “That's not a proper way to investigate a crime.”