中加反腐败技术合作 : 该做些什么？Sino-Canadian Technical Cooperation in

Combatting Corruption: What Needs to Be Done？ 

Vincent Cheng Yang, Ph.D.

Chair Professor of Intl Law, USJ, Macau

澳门圣若瑟大学国际法讲座教授  杨诚

Canada-China Technical Cooperation in Combatting Corruption since 2003

• 1994: Canada-China MLAT signed.

• 1995: 1st Canada-China criminal justice technical assistance/cooperation started with SPP’s National Prosecutor’s College etc.

• 2003-2008: Two bilateral projects implemented.

• Work continues but no more funding from Canada.

• Canada-China Procuratorate Reform Project with the Supreme People’s Procuratorate (2004-2008, CIDA $3m)

• Canada-China Intl Standards in Criminal Justice Project (2003-2007, CIDA $2m)

High-Level Exchange Visits

• First SPP delegation led by Mr. Zhao Deng Ju, VP of SPP in charge of anti-corruption, to Canada through CCPRP in 2003.

Symposiums and Workshops

Research & Publications

Technical Assistance or Technical Cooperation?

• The Canada-China initiatives in criminal justice is a two-way learning process of technical cooperation rather than the one-way technical assistance.

• The sharing of Canada’s best practices and lessons learned has helped China to assess and improve the Chinese laws and systems.

• The sharing of information and knowledge on China has helped Canada to deal with important fugitive cases.

The case of fugitive Lai Chang Xing• The most wanted Chinese fugitive

during 1999-2011.• Fled to Canada in 1999 and fought

deportation order for over 10 years. Sent back to China on July 22, 2011.

• Key issues in legal battle: Are we sure about the Chinese laws, systems and practices?

• Convicted of smuggling and paying bribery and sentenced to life imprisonment on May 18, 2012.

• All Chinese assurances provided to Canada were fully honored: no death sentence, fair trial, prison visit(s) by Canadian officials.

Sharing of information and expertise: cooperation should continue

• IT CPI 2012 ranking

• Canada: #9• China: #80

China is facing enormous challenges in fighting corruption. Canada is one of the least corrupted countries in the world.

Lessons learned in Canada: “No country is entirely free of corruption.” (DFAIT, 2013)

• 1st famous incident of corruption in Canadian history

• Pacific Scandal (1870s) – allegations of bribes ($360k of campaign funds for the 1872 general election) being taken by members of the Conservative government to influence the bidding for the Canadian Pacific Railway project, led to the resignation of Canada’s first Prime Minister, Sir John A. Macdonald, and the transfer of power to a Liberal government.

Airbus scandal (1990s)

In 1995, the RCMP accused Prime Minister Brian Mulroney of accepting kickbacks on the sale of Airbus planes when he was PM of Canada. In 1997, Mulroney launched a defamation law suit against the government. A public inquiry was conducted in 2009 and found Mulroney received at least C$225k when he was a Member of the Parliament (but not the PM yet!) without providing the services that he was paid for and “repeatedly acted inappropriately in disclosure and reporting of the dealings and payments”…. (but no indication of any civil or criminal liability!)

Montreal Mayor Michael Applebaum arrested by UPAC (June 17, 2013)

• Most recent case of corruption: Montreal Mayor Applebaum arrested by Quebec’s anti-corruption police the Unité permanente anticorruption, facing 14 charges including fraud, conspiracy, breach of trust, and corruption in municipal affairs.

• Police said the transactions being investigated were worth "several hundreds of thousands of dollars."

Canada’s Best Practices: zero tolerance policy in fighting corruption within Canada

• Canadian Law (CCC ss.119-125): bribe can be money, valuable consideration, office, place or employment, reward or immunity, etc. any valuable benefit that the official would derive from carrying out official duties, over and above the remuneration and benefits provided by law.

• Chinese Criminal Law: bribe is money of “a larger amount” or property above certain level of monetary value.

• Question: Could it be non-property interest or benefit, or services? And any amount of money?

• UNCAC: “undue benefit” is enough.

Example: Be careful when you give gifts to government officials

• DFAIT warning to Canadians doing business in China: It is often expected to give gifts and kickbacks.

• Canadian law: “frauds on the government” (s.121 of CCC) It may be an offence to give a gift or any benefit to a government official, and it may be an offence for a government official to accept a gift or benefit from a person dealing with the government, unless they have an approval in writing from the head of the government department.

Hot topic in China: Should sex services be considered as bribes?

• Liu Zhijun, former Minister of Railways, was indicted of the offences of taking bribes and abusing powers in 2013, but not for receiving corruptive sex services from women.

• David William Ramsay, the former Prince George Provincial Court judge who used his influence to prey on young prostitutes, was convicted of sexual assault and sentenced to 7 years in 2004. Died in prison in 2008.

Canada’s best practices: You must report corruption!

• The Public Servants Disclosure Protection Act (S.C. 2005, c.46)– Confidence in government is enhanced by

establishing effective procedures for the disclosure of wrongdoings and for protecting public servants who disclose wrongdoings.

– Set up internal procedures for disclosure of wrongdoings.

– Recognition of rights and obligations to report.– Disclosure internally and to the public.– Prohibition against reprisal. Commissioner to hear

complaints relating to reprisals.

Canada’s Best Practices: Protection of witnesses

• UNCAC: take appropriate measures to protect witnesses and their relatives.

• s. 423.1 of CCC: It is an offence to intimidate a “justice system participant” – a witness, a journalist, or the general public to impede the administration of criminal justice.

• The federal and provincial Witness Protection Program Acts and services

• Bill C-51 (witness protection) had 2nd reading in the Senate of Canada this month (June, 2013) – to further improve the protection by giving an extension of the period of emergency protection and introducing new prohibitions against the disclosure of information etc.

• In 2007, there were a total of 1,000 protectees in the FWPP. In 2011-2012, the FWPP spent about $9m.

Canada’s Best Practices: Preventive Measures

6 well-enforced federal codes of conduct for public officials:• Values and Ethics Code for the Public Service - middle

and lower levels public servants;• Conflict of Interest and Post-employment Code for

Public Office Holders - highest level public; • Conflict of Interest Code for Members of the House of

Commons• Conflict of Interest Code for Senators • A guide for Ministers and Ministers of State• Ethical Principles for Judges

Problems in the Canadian System: difficulties in dealing with corruption outside of Canada

• Eileen Skinnider: Many problems in the Canadian laws and systems have been identified by OECD, Transparency International, experts and academics.

• No extra-territorial jurisdiction on activities of corruption committed by non-Canadians overseas under the Canadian law.

• Very few convictions of Canadians for the offence of corruption committed overseas under the Corruption of Foreign Public Officials Act (CFPOA).

• Enormous difficulties in the system for the removal of foreign fugitives and the return of stolen assets to other countries.

Effort to Address the Problem of Foreign Corruption: better cooperation with China?

Faster removal of foreign fugitives• Need an extradition treaty• Bill C-43: Faster Removal of Foreign Criminals

Act - passed on Feb. 6, 2013– Does it apply to fugitives wanted for corruption?

• Bill S-14: Fight Foreign Corruption Act - to amend the CFPOA, passed by the Senate on March 26, 2013

Bill S-14: Fight Foreign Corruption Act-Still no jurisdiction on foreign fugitive

5. (1) Every person who commits an act or omission outside Canada that, if committed in Canada, would constitute an offence under section 3 or 4 — or a conspiracy to commit, an attempt to commit, being an accessory after the fact in relation to, or any counseling in relation to, an offence under that section — is deemed to have committed that act or omission in Canada if the person is(a) a Canadian citizen;(b) a permanent resident of Canada;(c) a public body, corporation, society, company, firm or partnership that is incorporated, formed or otherwise organized under the laws of Canada or a province.

Recovery and return of stolen asset

• Canada’s Forfeited Property Sharing Regulations– We must have an asset sharing agreement.– We will allow Canada to keep up to 90% of the asset.

• Ongoing negotiation of the Canada-China Asset Sharing Agreement– First ever such an agreement to China, 17th to Canada– Are they going to use the same formula?

• Civil recovery– Great potentials– Need technical cooperation to understand each and

build trust first!

• Thank you!• Email: profvcy@hotmail.com

Prof. Vincent Cheng Yang, USJ,Macau, China澳门圣若瑟大学国际法讲座教授  杨诚

Working together to build the bridge for more cooperation.