Chinese and Canadian Law Experts Exchange Views
By staff reporter XING WEN
THE Embassy of Canada in Beijing held a symposium on May 25, 2015 themed on protecting the legal rights of the accused in the pursuit of justice. Louise Arbour, former justice of the Supreme Court of Canada and former United Nations High Commissioner for Human Rights, delivered a speech and was later joined by Professor He Jiahong, director of the Center for Common Law and director of the Institute of Evidence at Renmin University Law School, for further discussion of the topic. Participants included representatives from China's Ministry of Foreign Affairs, Ministry of Justice, Ministry of Supervision, and Ministry of Public Security, as well as from academia and the press.
Madame Arbour's visit to China endorses Canada and China's long history of legal cooperation, deputy head of mission of the Canadian Embassy in Beijing and moderator of the symposium Cindy Temorshuizen said. Good governance, the rule of law, and legal aid have all been focal points of Canadian development programming in China for many years, she added. For instance, the Canadian International Development Agency played an important role in supporting the development of key judicial and legal institutions, having contributed RMB 138 million over the years in support of eight bilateral legal and judicial reform projects. Canada has moreover helped China to build its capacity at all levels, including judges, procurators, and lawyers. More recently, cooperation between China and Canada has taken place through dialogue exchanges. Temorshizen pointed out that China has learned much about Canadian approaches to legal and judicial matters through this longstanding and ongoing cooperation and dialogue, while Canada has gained a better understanding of the challenges that China faces.
Based on Canada's experience, Madame Arbour shared her insights on the fundamental role that protecting the legal rights of the accused in the pursuit of justice plays in safeguarding the freedom of a society. In her opinion, central to the specific legal rights and protection that apply to a person accused of a crime is the concept wherein the ultimate object of the law is to foster respect and compliance, which in turns makes enforcement of the law all the more feasible. There are other considerations that come into play to support the idea that a person accused of a crime should enjoy specific rights and protections. One important consideration, she noted, is the need to guard against wrongful convictions.
Taking the presumption of innocence until proven guilty in the Canadian criminal justice process as an example, Madame Arbour explained the important ramifications of this for a whole range of issues. The presumption of innocence is not a prediction of outcome; nor does it suggest that it is more likely than not that the accused is innocent. Rather, it is a legal direction given to prosecution authorities to proceed at all stages subsequent to an arrest as though guilt were an open question, despite facts which may at times point very strongly to guilt. As a matter of fact, Canadian law struggled for a long time to eventually elevate the presumption of innocence and other procedural rights to constitutionally protected status.
On top of that, Arbour explained that the rationale behind the system of procedural protection of individual rights in the field of criminal law does not ensue from a benevolent, liberal view of crime that exercises leniency out of tolerance for deviant behavior as a way of giving preference to individual freedom over the greater public interest. On the contrary, she believes that robust individual protection in the face of state action is ultimately the best law enforcement strategy. It forces the state to act professionally in building a case rather than to rely on hostile public feeling towards an accused or, even worse, on the simple fact of its overwhelming power. Procedural guarantees, fairness, and a high burden of proof minimize the risk of wrongful convictions, which are enormously damaging to public trust in state institutions, and foster compliance with the law, without which most systems would eventually collapse. On the other hand, the public demonstration that culpability is credibly established and that punishment is deserved contributes not only to the eventual rehabilitation and reassimilation of the offender into society, but to the larger public trust in the criminal justice system.
In the conversation that followed, Madame Arbour and Professor He Jiahong touched upon a wide range of issues, such as protecting the rights of both the accused and the victims while combating crime, measures to prevent abuse of police power, and the jury's role in avoiding wrongful convictions, among others. They also answered participants' questions.
