Criminal Law Reform & Advocacy Project in China

by Ursula Botz and Gil McKinnon, QC

The CBA, through its International Development Program, continues to promote the rule of law in various countries around the world. In China, the CBA has been working with and supporting the All China Lawyers Association (ACLA) since 1994.

Two Vancouver lawyers, Ursula Botz and Gil McKinnon, QC, recently volunteered as members of Canadian delegations to China participating in the CBA/ACLA Criminal Law Reform & Advocacy Project. The project’s objective is to improve the professional skills of the Chinese defence lawyers and to assist their Association in advancing criminal law reforms. Funding for the project is provided by the Canadian International Development Agency.

Ursula Botz, a lawyer with the Criminal Appeals section of the Crown Counsel office, participated in a two-week training session in August 2005. Together with the project organizer, Andrea Redway, and two criminal defence lawyers from Halifax and Toronto, Botz traveled to two remote areas of China. In both Hailar in the Inner Mongolia Autonomous Region and in Lanzhou in Gansu Province, the group delivered a Professional and Advocacy Skills Training Session to about 100 criminal defence lawyers. The sessions, conducted with the help of interpreters, included lectures about the Canadian criminal justice system and demonstrations of direct and cross-examination as well as closing arguments. The Chinese participants were also given an opportunity to practice their own advocacy skills in front of the class.

“Chinese defence lawyers work in conditions which are almost incomprehensible to Canadians,” says Botz. “In the Chinese system, despite amendments to the Criminal Procedure Law in 1997 and other signs of apparent progress, many rights which we take for granted are nonexistent.”

As examples, Botz notes that there is no right to silence; bail is the exception rather than the rule; access to counsel is severely limited; forced confessions are common, and the defence does not have the right to full disclosure. At trial, evidence is often adduced by prosecutors simply reading from statements of witnesses who cannot be confronted through cross-examination. The conviction rate is approximately 98 per cent, and many offences are punishable by death.

Despite these challenges, the criminal defence bar is working hard to advance the rights of the accused and change the laws of China. The Chinese lawyers who participated in the training sessions were extremely interested in meeting foreign lawyers, hearing about the Canadian criminal justice system, and discussing how they might promote criminal law reform in their own country. In Botz’s view, even if such reform is a slow process, it is worthwhile to expose lawyers throughout China to new ideas and to let them know that they have the support of lawyers in Canada as they work to establish a criminal justice system with greater procedural fairness.

Gil McKinnon traveled to China at the end of November 2005 with Ms. Redway and three lawyers from Ontario. They spent one week in Beijing and another week in Kunming, the capital of the beautiful south-west province of Yunnan. In Beijing they participated in the Annual Working Session of the ACLA, with representatives from all the Chinese provinces. The purpose of this Session was to finalize a draft Code for criminal procedure in China. The ACLA hopes to present its proposal to China’s National People’s Congress this year. McKinnon says there was a lot of enthusiastic debate during the conference. The Canadians contributed by answering questions about Canada’s criminal justice system and presenting short lectures and demonstrations on pre-trial (arrest, bail, disclosure) and trial procedures.

In Kunming the Canadians participated in a training session for defence lawyers, prosecutors and judges from Yunnan and neighboring provinces, including Tibet. One day the Canadians did a mock criminal trial. The following day the Chinese participants conducted a mock Chinese trial using the same fact pattern. The Chinese delegates served as the jury. In both trials, the “jurors” voted to acquit the accused. McKinnon says that watching the Chinese mock trial and exchanging points of view in the discussion that followed provided the Canadians with a fascinating glimpse into the operation of the Chinese system.

It is a daunting task to establish a justice system based on the rule of law having only 180,000 lawyers in a country of 1.3 billion people. McKinnon says that whatever assistance Canadian lawyers can provide should be encouraged. He believes that the work of the CBA in China is a good investment for both Canada and China. Any criminal lawyer interested in participating in this project should contact Andrea Redway and send her a résumé to: aredway@cba.org.

This article was published in the April 2006 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.