The China project.
Other goals of the project include helping the local lawyers' associations develop their own training programs to deliver professional skills training for lawyers, increasing their capacity to advocate for law reform, and assisting them in helping the public understand the legal system and the role of lawyers within it.
Prior to my flight, I armed myself with as much information as possible about the changing Chinese criminal justice system. Information was hard to come by, often conflicting, and sometimes dated. Major revisions to the Criminal Procedure Law of the People's Republic of China were enacted in 1996, yet many of the rights and protections we enjoy in Canada were not a part of it. It was difficult to determine how active lawyers were in the criminal justice process, and whether the procedures the law technically provided for were even occurring and with what regularity. Nonetheless, I went to China with a plan as to how these lawyers might deal with the challenges which I expected must face them.
The CJRAP attempts to reach as many lawyers as possible, particularly those who do not have access to what little continuing legal education there is and thus sends the lecturing Canadian lawyers to remote regions throughout the country. In 2004, I made two trips to China, travelling to four separate areas, including a very remote region south of Kazakhstan where there were only 2,000 lawyers for a population in excess of two million people. Using translators, we met with groups of 70 to 100 regional lawyers who practised at least some criminal law and, in two- to three-day sessions, attempted to educate them about our criminal justice system and about the advocacy skills we employ on behalf of clients here. We demonstrated how we interview our clients in Canada, how we examine and cross-examine witnesses and the skill of argument at the conclusion of a case. Although the lawyers were very interested in our approach and wholeheartedly embraced the opportunity to engage in role-playing exercises, I expect that their opportunities to actually use the skills in Chinese courts will have to wait for further law reform and for increased acceptance of the importance of accused persons having legal representation in criminal courts.
Chinese lawyers are not, like Canadian lawyers, the zealous, loyal, independent advocates of their clients' interests. The legal profession is not independent in China, but is controlled by the government, in particular, The Ministry of Justice. Many judges were previously appointed by the Communist Party from senior party ranks and were not, until recently, required to be legally trained. The lawyers at the training sessions asked us a number of questions which had ethical components, including one suggesting that an important marketing tool for lawyers would be telling the client and his family that you had connections to the judge or to the prosecutor. Interestingly, in China, there is no concept of solicitor and client privilege. In Canada, this is a fundamental part of our justice system allowing people who consult with a lawyer the assurance of knowing that whatever they say to the lawyer for the purpose of obtaining legal advice will remain confidential. A Canadian lawyer could not disclose such information received from a client unless there was an imminent risk of serious harm to someone that could be prevented by the disclosure, or other limited serious circumstances. Not so in China, where the clients' full disclosure of the facts and of their situation to their own lawyers could be disclosed to others and then ultimately used against them.
The trip was an incredible learning experience for me. I quickly realized that it was not our place as Canadians to attempt to teach the Chinese lawyers how they might better do their job or to criticize their justice system, but rather to teach them how we perform our role and educate them about our system so that they could modify the skills we demonstrated to suit their own professional context. As I have noted, there are extreme cultural differences between the Canadian and Chinese legal systems. On one occasion, I was explaining the concept of a Canadian client's "right to remain silent" in the face of questioning by the police. With an appropriate pause for translation, my statement was met with raucous laughter from the Chinese lawyers at the very idea that such a privilege could ever be invoked by one of their clients in China.
I also went with some antiquated ideas, expecting that my professional dress should be dark, modest, and understated. I was surprised at both the number of female lawyers in the training sessions (easily one-half of the audience) and the westernization of their dress! The rooms were filled with pinks, reds, neon greens, silk, short skirts and high heels. Even the men wore very colourful and fashionable clothes, which all made sense when I discovered that few lawyers ever go to court.
Unlike a Canadian criminal trial, the Chinese accused person's trial is usually less than 30 minutes in length, with no witnesses called to testify, often no legally trained judge hearing the case, and a very limited role for the defence lawyer. If the client was detained in custody before trial, which is common as there is no constitutional right to reasonable bail, the lawyer can only interview the client in the presence of the police. Written statements constitute evidence which prevents any testing of the statement's reliability by cross-examination of the statement maker in court. Defence lawyers are often harassed and intimidated if they attempt to prepare a defence for the client, for example, by interviewing witnesses. It is an offence under the Criminal Procedure Law for someone to "entice" witnesses to change their testimony. Defence lawyers have been charged under this provision where witnesses have recanted their original statement after having been interviewed by the lawyer and disclosing to the lawyer a different version of events than the witness gave the police. Without an established legal aid system in China, most cases are tried without the accused persons ever having a lawyer to represent them or having had the opportunity to consult with a lawyer about their rights.
I believe that we, as Canadian lawyers, have an international obligation to assist lawyers in other countries in any way we can in developing and strengthening the rule of law. Our model of criminal justice, and of an independent bar and an independent judiciary, is one we should be proud of and one, among others, that China is looking to for expert advice and aid as it continues to reform its system of justice.
Mona Duckett, Q. C. is a lawyer with the firm of Royal, McCrum, Duckett & Glancy in Edmonton, Alberta.
|Printer friendly Cite/link Email Feedback|
|Title Annotation:||Feature Report on Canadian Lawyers Abroad|
|Date:||Sep 1, 2006|
|Previous Article:||Making a difference, one project at a time.|
|Next Article:||An experiment in popular participation.|