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Canadian criminal lawyers export expertise
By Tim Wilbur
Toronto
December 14 2007 issue


Heather Perkins-McVey (centre) works with her Chinese peers in China on law reform initiatives for the Chinese criminal justice system. 
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Imagine you are a criminal lawyer representing a client accused of a serious criminal offense. You are not allowed to meet your client after the police and prosecutors have fully interviewed your client and investigated the crime. Your client tells you that he was encouraged to plead guilty to get a more lenient sentence. You suspect much of the evidence against your client was obtained illegally but there is nothing you can do to have it excluded. You cannot cross-examine the prosecution’s witnesses because their testimony is submitted only by sworn affidavits in a trial that is highly secretive.

This not the description of the trial of an accused terrorist, but of a typical criminal trial in China. Currently, China operates under a continental, or inquisitorial, model for its criminal trials, where judicial independence and the basic rights of the accused are far less entrenched than in Canada.

But as with everything in China, this is changing, and new ideas, approaches and philosophies are seeping into the country’s criminal justice system. Thanks to a group of criminal lawyers in Canada, Chinese lawyers are learning about our adversarial model for criminal justice, and Chinese criminal defence lawyers are hoping to incorporate some of these ideas into their evolving system.

Heather Perkins-McVey is a criminal defence lawyer in Ottawa who has travelled to China three times since she helped found the criminal law reform & advocacy project. This project, which is run as part of the Canadian Bar Association’s international development program, has created links between Canadian and Chinese criminal defence lawyers by sending Canadian lawyers to China and hosting visits by Chinese lawyers in Canada.

“There is very little you can do if all you are doing is exchanging affidavit materials,” Perkins-McVey told The Lawyers Weekly, in describing the challenges faced by Chinese defence lawyers. Perkins-McVey has witnessed some reforms in China’s criminal law, but the changes are much slower than the radical revolution in China’s economy. “There was a period of time when it seemed that they were really moving forward at quite a heady pace,” said Perkins-McVey. “However, it also seemed that perhaps they flew too far, too high, too quickly, and then there seemed to be a slight retreat.

It is still dangerous to be a criminal defence lawyer in China. But I do see that they are sticking with stronger conviction about the need for reform and about the need for legal counsel.”

The CBA China project has been around since 2003, and in late November, two Chinese lawyers visited Canada to plan the next visit by Canadian lawyers in China at the Criminal Law Committee’s annual meeting in January 2008.

Dr. Gu Yongzhong, a professor with the Procedural Law Research Centre at China University of Political Science and Law in Beijing and vice-chair of China’s Criminal Law Committee, was one of the delegates who arrived in Canada late last month. He optimistically pointed out that a new law will take effect next summer in China allowing lawyers to interview their clients without being monitored by the state. At the present time, Dr. Gu says, “the prosecutors or police monitor [criminal lawyers] when they are interviewing [clients]. In some situations, they even stand between them.”

Gil McKinnon, a criminal lawyer in Vancouver who has travelled to China twice with the program, says there are two main areas where the knowledge of Canadian lawyers can be of assistance: explaining how our adversarial system works and skills training. “We go diplomatically, explaining our system so that they can understand the basic and fundamental concepts of presumption of innocence and burden of proof on the Crown and the right to silence of the accused.... Chinese lawyers who are at the forefront of this project at the CBA... are [also] very interested in seeing how Canadian lawyers use their skills, particularly cross-examination, to... incorporate some of that into their own criminal trials.”

Andrea Redway, who heads the criminal law reform & advocacy project, says there are four components to the project. First is capacity building, which includes helping Chinese criminal lawyers communicate to their peers through newsletters and a website; second is a training component, which funds the trips to and from China; third is law reform; and fourth is public education. The law reform component includes assistance to Chinese lawyers in making submissions on a new model criminal procedure law to the Chinese government.

The changes to the Chinese criminal system, although they are slow, are encouraging to the Canadian defence lawyers on the project. “Defence lawyers in China now seem to feel more comfortable with calling themselves defence lawyers,” said Perkins-McVey. Despite her interactions with Chinese lawyers, though, Perkins-McVey also points out that her group has still not yet been able to witness a trial or even see a courthouse in China, since the definition of sensitive cases is very broad and the public rarely attends court proceedings.

But despite the differences, there are certainly commonalities between the experience of Chinese and Canadian criminal lawyers. As Dr. Gu points out, “the biggest challenge that defence lawyers have to face is that the public,... who do not fully understand the lawyer’s role,... still think lawyers just provide a service to... bad people. They do not realize that the lawyer’s role is to help maintain justice for the society.”

Canadians who criticize defence lawyers for “providing a service to bad people” may think again if they knew how Canadian lawyers are helping their Chinese peers maintain justice and uphold basic rights that are no doubt taken for granted by most Canadians.

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