D.卡尔顿 罗西
D. Carlton Rossi

Treaties


              
                         



                                                 

                                                  Extradition Treaties


The Right Honourable Justin Trudeau has said that "Canada has extremely high standards on extradition treaties" and a "very, very rigorous process that conforms with the expectations and the values of Canadians." That may very well be true of the fifty extradition treaties that Canada has signed with other countries. However, an extradition treaty with China is a very, very different matter and in a category all of its own. China holds neither to domestic rule of law nor international rule of law and so it does not conform "with the expectations and values of Canadians" whose core values are reflected in The Charter of Rights and Freedoms which is entrenched in the Constitution rather than rights and freedoms or lack thereof which are based upon the values of a Core Leader. In fact, Trudeau was quoted in The New York Times Magazine as saying that "There is no core identity, no mainstream in Canada". It is therefore unclear how there can be conformity on anything. This analysis argues that a China-Canada Extradition Treaty must be at least dependent upon extradition agreements signed between the Chinese themselves; namely, the two Special Administrative Regions of Hong Kong and Macao, Taiwan and the PRC.


Many Hong Kongers applied for residency in Canada prior to the handover in 1997. They then returned to Hong Kong to see if Hong Kong would remain as a separate and independent judisdiction. Instead, they have seen a continual erosion of its jurisdiction with mainland incursion and intrusion.


The HKSAR has been able to complete international agreements as if it were an independent state. Therefore, it has been able to arrange extradition treaties with various countries. However, if the judicial system of Hong Kong becomes less independent and more integrated with the judicial system of the PRC then rights of criminal defendants will be compromised.



Canada has signed an extradition treaty with Hong Kong. It was made possible because Hong Kong abolished the death penalty in 1993 under the British Colonial government. Canada had earlier abolished the death penalty in 1977 under the Liberal government of Pierre Elliot Trudeau who argued strongly for abolition.



However, what happens in the future to Canadians arrested in Hong Kong or Hong Kongers arrested in Canada if Hong Kong does not have a separate and independent judiciary? It would seem that a China-Canada Extradition Treaty would override, supercede and make obsolete the Hong Kong-Canada Extradition Treaty. Why would Canada weaken its extradition treaty with Hong Kong which is based on "rule of law" and substitute an extradition treaty based on "rule by law" with the PRC?


Presumably, Hong Kong-Canadians might be extradited to the PRC which has the death penalty or if to Hong Kong then their treatment might be less than humane. Remember that Hong Kong has not agreed to a formal extradition treaty with the PRC because the PRC has the death penalty and also due to its treatment of prisoners. Why would Canada contemplate an extradition treaty with the PRC if there is no extradition agreement between Hong Kong and the PRC?



It is one thing to do as the Chinese do while visiting the PRC, but it is another thing to do as they say regarding the core identity of Canadians. Canadians do not have an affinity with an authoritarian Core Leader. They will not be substantially influenced, either, by one who may be a moral relativist without core identity in dealings with China as it concerns rule of law and human rights. To put it bluntly, in these matters, Canadians want the vision of Pierre Elliot Trudeau who presumably named his son after Justinian who compiled a Body of Civil Law.



                  

                                  Kevin Garratt


It is highly disturbing that Kevin Garratt was detained and arrested on charges of spying and stealing state, military secrets only one week after it was alleged that a "highly sophisticated Chinese state-sponsored actor recently managed to hack into the computer systems at Canada's National Research Council". Of course, the charges are denied by China. In other words, he was held as a virtual hostage for accusations of alleged crimes committed by China in Canada. It is beyond coincidence that he was convicted on those charges, granted bail and then deported to Canada unless there was an understanding that Canada would open talks regarding a China-Canada Extradition Treaty which transpired a short time later. What kind of extradition treaty is executed on apparent extortion?


Canadian governments under both the Liberals of the Rt. Hon. Chrétien and the Conservatives of the Rt. Hon. Harper supported the populist Bo Xilai as a reformer. They were mistaken. He wanted to return China to the heyday of the Cultural Revolution under Mao. In fact, he was so popular that he was regarded as a threat to the Communist Party. Bo's fall meant the collapse of Canada's foreign policy regarding China. Is the Canadian government in the process of aligning itself with another pro-Mao leader whose agenda is eerily similar to the Anti-Rightest Campaign of 1957 which persecuted intellectuals and led to loss of individual freedoms?




                                    


                                                           Stephen Dion



An editorial opinion in The Ottawa Citizen of September 07, 2016 hit the mark. It expressed the view that "Trudeau missed an opportunity to deal straightforwardly with China. Whatever else he gained, he loses points for not distinguishing between taking responsibility, and denying the need to." The Minister of Foreign Affairs or the Honorable Stéphane Dion replied semantically that "To say that nothing is perfect is obviously not the same as saying everything is equivalent."



It is clear though that Stéphane Dion has expressed both too few words and too many words on other occasions. His loss for words concerned a lack of response to the Chinese representative who berated a Canadian journalist for her concerns on human rights in China. It seems that he expressed too many words against an extradition treaty with a country which supported the death penalty as does China. To his credit, he told that reporters as reported by The Huffington Press that what Canada means by the rule of law is “due process, the independence of the judicial system, the rights for detainees, and asking clemency in every circumstance.” It is evident that his views are at odds with those of the Prime Minister on the extradition issue.


The Special Administrative Region of Macao known by the abbreviation MOSAR did away with the death penalty in 1976 when Portugal abolished it in all its territories. Macao does not have an extradition agreement with the PRC. It is reluctant to sign an agreement because the PRC has the death penalty. Why would Canada be interested in signing an extradition treaty with the PRC before its region signs an agreement with it?


Macao and Hong Kong have been negotiating for three years to establish an extradition treaty between them. A treaty has not been signed despite assurances that it was imminent. The issue seems to revolve around retroactivity. Why does Canada find it so imperative at this time to sign an extradition treaty with the PRC at its request when two administrative regions have been unable to sign an extradition agreement?


In an unprecedented move, the legislative assembly of Macao turned down the draft law brought to it by the Executive Council in late 2015 that would make it possible to sign extradition treaties with Hong Kong and the PRC. First, it was not easy to achieve consensus among those involved in different legal systems. Second, the agreements could allow for political activists to be extradited to the mainland. Third, the proposal would allow for the extradition of people wanted by China for national security or military crimes even if there was no such crime in Macau-- thus going against international extradition principles. This is just a hint of a Pandora's box of constitutional and moral issues that will be opened up if a China-Canada extradition treaty is signed that could potentially involve the mainland, Taiwan, Hong Kong, Macao and other territories claimed by China.


There has been extradition of criminals since 1989 between Taiwan and the PRC. However, there has been no formal extradition treaty signed despite the fact that both have the death penalty. It appears that both are separated by more than the Taiwan Strait. If a Taiwanese resident were to seek asylum in Canada because of national security issues in the PRC then would it be covered by international extradition law or by a China-Canada Extradition Treaty?


In summary, a step by step approach should be taken with regard to any consideration of a China-Canada Extradition Treaty. The first step is that the PRC, Taiwan, Hong Kong and Macao must sign bilateral or multilateral extradition treaties among each other. In other words, they must resolve among themselves issues concerning the death penalty, human rights, judicial systems and laws. Only when the Chinese have achieved consensus on these issues can the process begin of negotiating a China-Canada Extradition Treaty.


References


PMO's Silence On China's Human Rights Record Troubling: Critics

Posted: 09/30/2016 5:03 pm

http://www.huffingtonpost.ca/2016/09/30/canada-china-legal-system_n_12270136.html Ottawa to negotiate extradition treaty with China




ROBERT FIFE - OTTAWA BUREAU CHIEF

The Globe and Mail

Published Tuesday, Sep. 20, 2016 6:00AM EDT

http://www.theglobeandmail.com/news/politics/ottawa-china-to-negotiate-extradition-treaty/article31961475/



Canada to negotiate extradition treaty with China

By Lynn Desjardins

Tuesday 20 September, 2016


http://www.rcinet.ca/en/2016/09/20/canada-to-negotiate-extradition-treaty-with-china-garratt/



Glavin: The questions politicians don't want us asking about Chinese money

Ottawa Citizen

May 07, 2016

http://ottawacitizen.com/opinion/columnists/glavin-the-questions-politicians-dont-want-us-asking-about-chinese-money



Macau Legislative Assembly rejects extradition proposal

Macao News

May 09, 2016

http://macaunews.com.mo/macau-legislative-assembly-rejects-extradition-proposal/



China’s Fox Hunt in Canada strains trust that an extradition treaty is possible

NATHAN VANDERKLIPPE

BEIJING — The Globe and Mail

Published Friday, Sep. 23, 2016 9:54PM EDT


http://www.theglobeandmail.com/news/world/chinas-fox-hunt-in-canada-strains-trust-that-an-extradition-treaty-is-possible/article32042306/