192 THE ADVOCATE
VOL. 80 PART 2 MARCH 2022
trial judge, the Court of Appeal or the Court of Final Appeal. All of the
judges are designated judges.
WHAT THIS MEANS FOR CANADA
After the NSL became law in the HKSAR, the Canadian government suspended
the operation of the “Agreement Between the Government of Hong
Kong and the Government of Canada for the Surrender of Fugitive Offenders”.
46 It remains suspended. In the future, the government may decide to
resume operation of the agreement and accept requests from the HKSAR
for the surrender of persons to face trial or punishment in the HKSAR. A
request might be made for a person alleged to have committed an NSL
offense, but because of the universal bar to the extradition of a person if the
alleged conduct is a “political offence” or “an offence of a political character”,
then depending on the facts, a Canadian court would likely find the
request was for a “political offence” and discharge the person from the fugitive
offender proceedings.
There might be a less obvious case, for example, where the HKSAR
accuses a person of theft or criminal damage. The victims of the offence
could be organizations or institutions protected by NSL offences, but the
context of the criminal offence may not be apparent. If the request and supporting
documents satisfy the conditions for surrender in the agreement
and the Extradition Act,47 the Minister of Justice could order the person’s
surrender to the HKSAR for trial. Once the person is returned to the
HKSAR, the authorities might substitute an NSL offence for the offence
specified in the request and supporting documents. Another principle of
extradition is the rule of specialty: a person may be dealt with in the
requesting state only for the conduct in respect of which their extradition
was ordered.48 In this scenario, the rule would not apply because the
HKSAR could argue that the conduct constituting the NSL offence is the
same conduct for which their surrender was requested and ordered—the
only difference is that the conduct is now charged under a different statute.
Another scenario is where a person engages in anti-government activities
in the HKSAR and seeks asylum in Canada. If their asylum claim is
unsuccessful and they are deported to the HKSAR, they might be tried for
an NSL offence.
If these or similar scenarios occur, Canadian courts and lawyers will have
to familiarize themselves with the HKSAR’s judicial system relating to NSLdesignated
judges because once a person is returned to the HKSAR, they
will be unable to challenge the independence of the designated judge. Canadian
courts will be called upon to decide the independence of the judiciary