Punishment. According to the provisions of the relevant Chinese laws,
during the period of investigation and trial of Lai after his repatriation
and, if convicted, during his term of imprisonment, Lai will not be
subject to torture and other cruel, inhuman or degrading treatment or
punishment.161
In February 2004, the federal court dismissed the Lais application for judicial review of
their refugee status determination and certified a set of questions for consideration by
the federal court of appeal. The questions included: “When does there need to be an
assessment of a foreign state’s assurance to avoid torture of refugee claimants separate
from its assessment not to impose the death penalty?”162
The federal court concluded that since there was no persuasive evidence of torture or
degrading treatment following return in cases similar to the Lais, the decision not to
assess the assurances against torture separately was justified.163 The Lais lawyers,
however, argued that some of the persons interrogated by the Chinese authorities about
the Lais were ill-treated and coerced into giving false information. They also argued that
the Suresh case established that the sole criterion for the need for a separate assessment
for assurances against torture is that the state “has engaged in illegal torture or allowed
others to do so on its territory in the past.”164 Because of the compelling nature of the
evidence directly linked to the Lais and the general evidence that torture was routinely
used to extract confessions in Chinese criminal proceedings, the court should have
conducted a separate assessment of the Chinese government’s assurances against torture.
The Suresh court articulated the operational problems inherent in relying on assurances in
torture risk cases:
A distinction may be drawn between assurances given by a state that it
will not apply the death penalty (through a legal process) and assurances
by a state that it will not resort to torture (an illegal process). We would
signal the difficulty in relying too heavily on assurances by a state that it
will refrain from torture in the future when it has engaged in illegal
torture or allowed others to do so on its territory in the past. This
difficulty becomes acute in cases where torture is inflicted not only with
161
Lai v. Canada, February 2004, para. 46.
162
Lai v. Canada, Public Memorandum of Fact and Law of the Appellants, Federal Court of Appeal, IMM-319402, Court No. A-191-04, July 26, 2004, copy on file with Human Rights Watch.
163
Lai v. Canada, February 2004, para. 50.
164
Ibid., para. 25.
HUMAN RIGHTS WATCH VOL. 17 NO. 4(D)
56
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents