The secret trials of Michael Spavor and Michael Kovrig were over mere hours after they began.
From the beginning of their incarceration in China, the Canadians have been denied rights that in the Anglo-Canadian justice system are viewed as fundamental. In stark contrast, those same rights have figured prominently in the extradition proceedings in Vancouver involving Meng Wanzhou, a Chinese citizen arrested Dec. 1, 2018, at the request of the United States, which accuses the Huawei Technologies executive of fraud.
China’s arrest of the two Canadians nine days later is almost universally seen as reprisal for Canada’s arrest of Ms. Wanzhou. China denies a link. The Globe and Mail’s Justice Writer Sean Fine reports on the basic features of Canadian justice not available to Mr. Spavor and Mr. Kovrig.
Judges in Canada cannot be fired by government when it disagrees with a ruling. Nor can they have their salaries cut. Protection of judges’ physical security is viewed as the third component of judicial independence. “The core for our system, what makes our system work, or any proper system in my view, is the independence of the decision maker. They have to have no skin in the game,” criminal defence lawyer Anil Kapoor says. Between 2004 and 2009, Canada’s National Judicial Institute sent leading judges, such as the Supreme Court’s Michel Bastarache and Marc Rosenberg of the Ontario Court of Appeal, to work with China on developing its legal system in conformity with international standards. But judicial independence is not a feature of the Chinese system, according to Thomas Kellogg, executive director of Georgetown University’s Center for Asian Law in Washington, D.C. “These cases show that the Communist Party is still making use of the criminal justice system to achieve political ends,” he says.
RIGHT TO AN INDEPENDENT LAWYER
Lawyers in Canada belong to a self-regulating profession. Their duty is to their client; they owe no allegiance to the government or governing party. In China in 1997, the profession’s independence from government was recognized in Chinese law, according to the website of the Canadian Bar Association. (The association worked with its Chinese counterparts on projects for several years, ending in 2014.) But today, lawyers are subject to Communist Party control, Prof. Kellogg says. “If they take on certain cases that are politically sensitive they can be threatened with loss of their licence, and if they keep going they can lose their licence.” Anyone arrested or detained in Canada has the constitutional right “to retain and instruct counsel without delay and to be informed of that right.” Ms. Meng’s legal team is led by Richard Peck, a winner of the G. Arthur Martin Criminal Justice Medal for contribution to criminal justice. The two Canadians have had limited access to legal counsel.
OPENNESS AND DISCLOSURE
China accused the Canadians of endangering national security, and tried the men behind closed doors. In Canadian law, national security criminal trials may not be fully open. Evidence may be given in secret. And disclosure of the prosecution’s case may be limited. By claiming a national security privilege over information, Canada says it protects foreign sources of information such as intelligence services, or confidential informants or intelligence-gathering methods here. Thus, disclosure may have redactions. But the accused may challenge the redactions. A closed hearing would then be held in Federal Court. The accused would not be allowed to attend, and the court would appoint a special advocate – from a list of such designated lawyers with security clearances – to challenge the redactions and seek greater disclosure. “What the special advocate will do is to argue it out with the government, usually CSIS [Canadian Security Intelligence Service], to try to get more information out to the individual,” says lawyer Paul Cavalluzzo, who is a special advocate. The Supreme Court ruled in 2014 that the government must drop a case if it won’t give the defence enough information to meet the case against the accused. It is not clear what, if anything, China disclosed before the brief trials, Mr. Spavor’s last Friday and Mr. Kovrig’s on Monday. Ms. Meng’s case featured public disclosure of the U.S. case against her, and of the Canadian case for extradition. Hearings have been open to the public.
As an accused is deemed innocent until proven guilty in the Canadian system, they have a right to reasonable bail unless they are deemed a danger to society or a flight risk, or if a court rules detention is necessary to maintain public confidence in the justice system. Ms. Meng was granted bail by posting a $10-million bond, and by presenting a plan to the court in which she would be observed 24/7 by a security company, and confined to her home at night. Mr. Kovrig and Mr. Spavor have been detained for 833 days, as of Monday.
PRESUMPTION OF INNOCENCE AND DUE PROCESS PROTECTIONS
In China, “most experts view the actual criminal trial as the enactment of a preordained conclusion,” Prof. Kellogg says, referring broadly to that country’s criminal justice system. In Canada, the presumption of innocence puts the burden on the state to prove its case. The standard of proof in criminal cases is high: beyond a reasonable doubt. Mr. Rosenberg, the Ontario judge who worked with China, discussed proof beyond a reasonable doubt with policy officials at the Supreme Peoples’ Court. “They understood it and the reasons for it but there was no sense at the end of our work with them that the political leadership would embrace the idea,” says George Thomson, a former head of the National Judicial Institute. In Canada, the accused also has a right to silence, which follows from the innocence presumption. “You get picked off by the coppers, you don’t have to say a word. No inference can be taken against you,” says Mr. Kapoor, who like Mr. Cavalluzzo is a special advocate in national security cases. For much of their incarceration, Mr. Kovrig and Mr. Spavor faced long, daily interrogations.
The Globe and Mail, March 22, 2021