Law Times

Law Times • January 25, 2016 Page 5 www.lawtimesnews.com Torture lawsuit against jailed Chinese politician dropped Ontario judge rules adjudicating issue would contravene state immunity BY MICHAEL McKIERNAN For Law Times A jailed Chinese politi- cian once tipped as a future president has one fewer thing to worry about after an Ontario judge dismissed a torture lawsuit against him because he was pro- tected by state immunity at the time of the allegations. Ontario Superior Court Jus- tice Elizabeth Stewart came to the decision after the extraor- dinary intervention of the All China Lawyers Association, the national bar association to which all practising lawyers in the People's Republic of China must belong. But the result may come as scant consolation to Bo Xilai, as he is currently serving a life sen- tence for corruption, along with his wife, who was given a sus- pended death sentence for the murder of a British businessman. The Ontario action was brought by Rong Jin, a Toronto accountant who claimed she was tortured and persecuted while a student in Dalian, a major sea- port in the northeastern Chinese province of Liaoning, in the early 2000s, due to her membership in Falun Gong, a spiritual organiza- tion outlawed by the Chinese state. The statement of claim was served on Bo, then the Chinese minister of commerce, during a 2007 visit to Ottawa to discuss international trade. He had been mayor of Da- lian between 1993 and 2000, be- fore becoming the governor of Li- aoning, and then ascending even further through the ranks of the Communist Party of China. Rong's Toronto lawyer Gavin Magrath says she always faced an uphill battle, but she is claiming a moral victory from the case. "Although the legal principle went against us, my client was able to make out her case, have her day in court, and express the suffer- ing she and her fellow followers of Falun Gong went through. In that way, there is some sort of benefit; some kind of closure to the deci- sion," he says. According to Stewart's judg- ment, none of the allegations ac- cused Bo of personally carrying out any harm but claimed he was implicated for using "his posi- tions as a top official" to "force or compel" communist party members to participate in a cam- paign against Falun Gong. Bo never responded to the lawsuit and was noted in default, but the State Immunity Act re- quires the court to give effect to the immunity conferred on a foreign state, and so the ACLA was granted intervenor status to make the case. Rong's lawyers argued that Bo's abuse of his lofty position within the Chinese government should mean that he was not en- titled to immunity, alleging his actions stepped beyond the legal authority of his offices, violating Chinese and international law. However, Stewart sided with the ACLA, agreeing with its ar- gument that "allegations of ille- gal, unauthorized, or malicious conduct against a foreign public official do not transform the acts into ones of private conduct out- side official capacity. The immu- nity conferred by the SIA cannot be defeated by alleging that the actions of the functionary were private, illegal, or an abuse of power outside the scope of the official's duties," she wrote in the Jan. 8 judgment. Stewart summarized recent case law on state immunity, noting that in 2014, the Supreme Court of Canada had found no exception to immunity in cases of alleged tor- ture committed outside Canada. The case, Kazemi Estate v. Islam- ic Republic of Iran, concerned an Iranian-Canadian photographer allegedly detained, tortured, and killed in an Iranian jail. Indeed, the court ruled that torture by def- inition is necessarily an official act of a foreign state. In Rong Jin's case, Stewart not- ed, the only reason Bo was singled out as a defendant was because of the official role he held in the Chinese Communist Party that effectively controls the country. "Rong Jin's claims relate to injuries she allegedly suffered at the hands of public officials in state institutions located within the People's Republic of China. The allegation that Bo Xilai acted outside his official capacity, but within his capacity as a Chinese Communist Party member (even if taken to have been proven), does not defeat the effect of the SIA. Adjudicating this issue in an Ontario court would contra- vene the basic principle under- lying state immunity. Canadian courts do not adjudicate on ex- ecutive, legislative or public ac- tions of foreign states," Stewart wrote. "I therefore agree with the position advanced by the ACLA. The allegations that Bo Xilai was acting outside an official capac- ity, and is therefore not immune, are unsupportable. The principle of state immunity and the SIA prevent this Court from hearing Rong Jin's claim." The judge said she accepted Rong's evidence "as to her expe- riences and suffering and do so with great sympathy. However, I consider that the law as outlined above prevents this court from providing her with any of the remedies she seeks," Stewart added. Bo was still on the rise when he was served with Rong's law- suit, leaving his post with the ministry of commerce in late 2007 to become the Communist Party secretary in the central municipality of Chongqing. However, his fortunes took a sharp turn for the worse when British businessman Neil Hey- wood was found dead in a Chongqing hotel room. Origi- nally explained as a case of alcohol poisoning, Heywood's death was later re-investigated after a high- profile falling out between Bo and Chongqing's police chief, during which the New York Times al- leged that Bo was running a wire- tapping operation all over the city. In July 2012, Bo's wife, Gu Kai- lai, was charged with Heywood's murder and later convicted. A year later, Bo was charged with corruption, bribery, and abuse of power, having lost his domes- tic immunity to prosecution as a result of his expulsion from par- liament. He was convicted of all charges and sentenced to life im- prisonment. LT NEWS The Canadian Lawyer InHouse 2016 Innovatio Awards is the pre-eminent award program recognizing innovation by members of the Canadian in-house bar in business, government or non-profit. The third annual awards celebrate in-house counsel, both individuals and teams, who have found ways to show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations. For more information, please contact Jennifer Brown Email: jen.brown@thomsonreuters.com | Phone: 416-649-8867 NOMINATIONS ARE OPEN! 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