Chinese politicians, not judges, may determine fate of Canadian sentenced to die

In theory, it should be up to China's top court to decide whether a B.C. man should be sentenced to death after being found guilty of drug smuggling. But it's in the political realm where his ultimate fate may be determined.

And it's the Chinese government that may also decide how long Robert Schellenberg's case will wind its way through China's judicial system.

According to China's Criminal Procedure Law, an execution should be carried out within seven days of the lower court receiving notice that the Supreme People's Court has approved the death sentence. But when that will happen may be impossible to predict, say experts in Chinese law.

The Chinese government "can accelerate the process. Convince the court to make it faster, really fast or they can make it slower," said Sida Liu, a University of Toronto sociology professor who is an expert on China's legal system.

The worst-case scenario: Schellenberg could be executed in the next few weeks or months, said Liu.

Or the case could drag on for years, as it already has. Schellenberg was arrested on Dec. 1, 2014. 

"It certainly looks to me like a case which was being slow-walked in the Liaoning People's Court system in breach of the two- or at most five-month sentencing norms  — which we see often in criminal cases involving foreigners," Nicholas Calcina Howson, a University of Michigan law professor and expert in Chinese law, said in an email.

"I have no idea as to if, and when, the case will get to the Supreme People's Court, as the timetable is so clearly governed by extra-judicial concerns."

As Chinese courts are not independent and are just part of the much bigger bureaucracy, the Chinese government can control the length of the judicial process relating to Schellenberg's case, said Liu.

"The outcome will be whatever China's political leaders decide it will be, and that will apparently depend on how they evaluate the political costs and benefits of their decision,"  Donald Clarke, a law professor at George Washington University and specialist in Chinese law, said in an email. 

"We should draw the conclusion that the Chinese government very obviously wants us to draw: this is a political case, and Schellenberg's fate will have nothing to do with his individual guilt or innocence."

Reversed 2016 ruling

On Monday, a Chinese court in northeastern Liaoning province announced that it had given Schellenberg the death penalty, reversing a 2016 ruling that sentenced him to 15 years in prison.

His sentence prompted speculation that the reversal was in retaliation for Canada's arrest of Meng Wanzhou, chief financial officer of the Chinese telecommunications giant Huawei.

Schellenberg had been given 10 days for an appeal of the verdict and sentence, which will be heard by the Higher People's Court of Liaoning Province, the same court that heard his appeal in December.

If that provincial court upholds this judgment,  the death sentence must then be reviewed by the Supreme People's Court (SPC).

Howson said he believes the SPC will confirm the sentence, but if there is no movement in the Meng case, the Chinese judiciary will rule for a two-year suspension on the imposition of the death penalty. 

If the convicted person in such a situation does not intentionally commit further crimes within those two years, the sentence is automatically reduced to life imprisonment or a fixed term of imprisonment, Howson said.

"I would be very surprised if the [death] sentence is confirmed by the Supreme People's Court and then carried out immediately," he said.

See Prime Minister Justin Trudeau comment on the Schellenberg case:

Trudeau on Schellenberg death sentence in China

6 years ago

Duration 0:35

Prime Minister Justin Trudeau comments on the death sentence given to Canadian Robert Schellenberg in China

In 1983, the SPC was stripped of its power to review death sentences. But with complaints that local governments were arbitrarily using the death penalty, and at the urging of many Chinese and foreign human rights advocates, the court regained its power of review in 2007.

This move was hailed, according to the New China News Agency, as "the most important reform of capital punishment in China in more than two decades."

"While the Superme Court rarely overrules a capital sentence, it certainly does so more than the former last stop, the provincial Higher People's Courts," said Howson.

2,000 executions in 2016

The Dui Hua Foundation, which monitors human rights in China, said on its website that since that reform, the number of executions has dropped significantly. In 2016, the organization estimated there were 2,000 executions in China. That's compared to 6,500 estimated to have been executed in 2007. 

Still, Amnesty International, in its 2016 report, estimated that China executed more than all other countries in the world put together. 

Execution of foreign nationals is rare, but it does happen. Between 2009 and 2015, China executed at least 19 foreigners for drug trafficking, John Kamm, chairman of the Dui Hua Foundation, told the New York Times. 

For example, in 2017, a Colombian man was executed by lethal injection for drug offences. And in 2009, a  British man who friends and supporters claimed was mentally unstable and was unwittingly lured into a crime was convicted of drug smuggling and executed.

Lethal injection is the most common method of execution, but firing squads still exist.

In 2017, 10 people, seven of whom were convicted of drug offences, were sentenced to death in a proceeding in a public square in southern Guangdong province in front of thousands of invited onlookers. The prisoners were then taken away for execution.