Home > Blog

China and Canada in talks over an extradition treaty

An extradition treaty between Canada and China is a prevalent issue in the news at the moment, this is unsurprising considering the significance of such a treaty. We have been told the good and the bad of an extradition treaty between the two countries, but what does it all really mean?

Experts have highlighted that China has capital punishment, a fact which is considered to be a hindrance to such an extradition treaty. However, a number of countries Canada currently holds extradition treaties with also have capital punishment, for example the United States and the Maldives. This would therefore suggest that capital punishment is not an element which would disqualify a country from forming an extradition treaty with Canada.

A further issue that has been highlighted by experts is the divide between Canada’s level of Human Rights protection and China’s level of Human Rights protection. China’s level of protection for Human Rights is sub-par when compared to Canada’s. But, again comparing Canada and China in this way is unrealistic and hasn’t been used as a prerequisite for previous extradition treaties, if it had been Canada would surely have no extradition treaties with other countries because they are unmatched when it comes to the level of protection they provide for Human Rights.

Another key issue that top extradition barristers argue about is whether the rule of law triumphs with the extradition treaty or without it. The legal principle of the rule of law is based upon the ideas of accountability, transparency and no arbitrary decisions being made. The principle is fundamental in Canadian law and English law, ensuring that everybody is bound by the law and nobody is above the law.

Canada has recently fallen into difficulty with China due to ignoring the own legal rules concerning money laundering. The legal rules in place in Canada are designed to ensure people are not able to move the proceeds of their crimes from one country into Canada. However, the Financial Action Task Force have suggested that money may be being laundered by Chinese Officials though real estate in Vancouver. It has been suggested by top extradition barristers that if they turn a blind eye to corruption on this one level the Canadian legal system would be favouring the middle and upper classes, those who are able to take advantage of Vancouver’s property market.

These Chinese fugitives are therefore breaking Canadian law by laundering the proceeds of crime, yet they are still currently able to avoid extradition to China. The suggestion from the Task Force was that Canada needs to step up its efforts to ensure the proceeds of corruption do not enter Canada. An extradition treaty could be a way of deterring potential fugitives who otherwise may see Canada as their safe-haven.

Western Countries such as France and Australia already have extradition treaties with China. This means China already has a template it will most likely want to use for its potential extradition treaty with Canada. However, Canada has a unique ability; unlike other countries, Canada faces the opportunity to push for change in China. Canada is in a strong position to make negotiations with China because it was voted as the second most attractive destination for corrupt Chinese fugitives.

Top extradition barristers have noted that the reason behind China’s desire for an extradition treaty with Canada is to ensure current and future fugitives that abscond to Canada with large sums of money will be returned to China. It has therefore been suggested that because of China’s interest in having these fugitives returned and for money launderers to no longer consider Canada to be a safe-haven, that they will be willing to make concessions in a potential agreement. However, some top extradition barristers have noted that talks of an extradition treaty may be enough for China as it will discourage fugitives from seeking asylum in Canada in the first place and thus China may not require a treaty, a kind of self-fulfilling prophecy.

The thought among other academics and extradition barristers is that Canada will be able to encourage China to improve its criminal justice system, a system that is currently afflicted with problems such as the use of torture and bribery by the police.

Maya Wang, Human Rights researcher, has suggested that during these talks Canada should be pushing for the release of jailed human rights lawyers in China. President Xi Jinping, in his war on western ideology and influence, arrested and jailed lawyers who had been fighting for the protection of human rights. It has also been suggested that although the death penalty has already been removed as a form of punishment in twenty-one offences, Canada should push for it to be removed from all drug related and economic related offences also.

Some top extradition barristers have argued that an extradition treaty may not change treatment of those arrested in China and that an extradition treaty may just be enabling China to commit Human Rights violations by returning fugitives to China. They have argued that the return of fugitives may not be an incentive strong enough to prove itself effective. Many have argued that although China wants current and future fugitives returned that may not be enough to allow foreign governments a say in their legal system. Professor Ling, a professor at Sydney Law School, has suggested that injustices within China’s legal system are long-standing and thus progress is unlikely to be easy. As a spokesman for Amnesty International has highlighted Canada needs to be willing to abandon the potential treaty if China does not make real and verifiable concessions.

The result of a treaty between these countries is unsure and we may only speculate until a treaty is signed. Although talks between China and Canada are ongoing it has been suggested that an extradition treaty may still be years away. As has been highlighted Canada and China have only agreed to discussions, formal talks have not begun. It is unsure when the talks will begin as first officials in Canada want to discuss with Canadian courts the standard of proof and specific requirements surrounding extradition to China.