Earlier this week, during two extraordinarily powerful interviews with Vina Nadjibulla, wife of Michael Kovrig, one of the “two Michaels” being detained by the Chinese government (the other is Michael Spavor), we learned that a letter had been sent to Canada’s justice minister in late May conveying a legal opinion that section 23 (3) of the Extradition Act provides the federal minister of justice the power to intervene in an extradition at any point during the judicial phase. That section reads:
Withdrawal of the authority to proceed
(3) The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention. [emphasis added]
In plain English, as explained by Toronto-based lawyer Brian Greenspan:
The minister has the right to withdraw the authority to proceed and to end the extradition proceeding, and it’s totally at the discretion of the minister of justice….
The letter was signed by 19 high-profile jurists, diplomats, and parliamentarians, including former Supreme Court justice Louise Arbour, former Liberal foreign affairs minister Lloyd Axworthy, former Conservative foreign affairs minister Lawrence Cannon, former Conservative senator Hugh Segal and former NDP leader Ed Broadbent, among others.
The letter calls for the Justice Minister to exercise his discretion to terminate the extradition process and free Huawei CFO Meng Wanzhou, which would, in turn, secure the release of the “two Michaels”, who are ostensibly being detained by China on spying charges but, in reality, are being held in retaliation for Meng’s detention.
The letter writers acknowledge there are no easy choices for the government of Canada but argue that freeing Ms. Meng and securing the release of Kovrig and Spavor “would untie Canada’s hands” as the extradition hearings are “hobbling Canada’s foreign policy at a time when it is crucial to define it with clarity and boldness.”
Initial response of Government of Canada
The Office of the Minister of Justice and Attorney General of Canada, David Lametti, said in a statement Tuesday they are “well aware of the laws and processes governing” the extradition proceedings.
If this is so, then why have the Prime Minister, the Justice Minister and other members of the government repeatedly misstated these “laws and processes” by arguing ad nauseum that it would contravene the rule of law for the Minister to intervene to halt the proceedings?
Canada has an independent judicial system that functions without interference or override by politicians…
It is one of the things that is deeply dear to Canadians in our system: to keep it strong and assure the division of powers within our democracy.
So the letter has clearly exposed the disingenuous rule of law argument that our PM has been hiding behind. But now Justin Trudeau, pushed by anti-China hardliners, has taken an even more misguided approach, dropping his measured, diplomatic language for the outrageous assertion that stopping the extradition would be to signal to other countries that:
all they have to do to get leverage over the Canadian government is randomly arrest a couple of Canadians.
As Michael Kovrig’s wife has so eloquently argued, the Chinese action, however reprehensible, was anything but random. It was a deliberate response to what that country views, with some justification, as an unjust detention of a prominent Chinese citizen by Canada at the behest of the USA.
Former Liberal Cabinet Minister John Manley, appearing on CBC’s Power and Politics on 30 June, pointed out the frequency of “prisoner swaps” and referenced one between Iran and the USA that took place in June.
Hardliners pushing government to act tough with China
A chorus of anti-China hardliners — from Conservative Party interim leader Andrew Scheer, to former Canadian Ambassador to China during the Harper years David Mulroney, to former National Security Advisor and former CSIS chief Richard Fadden — have constantly berated the Prime Minister for failing to be “tough enough” on China.
CGAI fellow and former diplomat Colin Robertson, in a recent CBC online article, and columnist Andrew Coyne on CBC The National’s 25 June “At Issue” panel, have suggested Canada should adopt “targeted Magnitsky-type sanctions” against high profile Chinese officials or their families, as befitting a more “muscular” response to “hold China to account”.
These are astonishingly reckless calls.
Trying to beat China in the retaliation game is a futile effort, will almost certainly result in worse conditions of detention for the two Michaels and potentially do serious harm to Canadians who benefit directly and indirectly from our extensive trade relationship with China, all the while further imperiling our chances of constructive engagement with China in future.
Let’s face facts: Canada is between a Trump administration rock and a Chinese government hard place.
Former Prime Minister Jean Chretien was dead-on when, as reported in the Globe and Mail in June 2019, he called the extradition request an unacceptable move by the United States at the expense of Canada and its China-exporting farmers and pork producers. He has also privately opined that Canada should not pay the price for the Meng arrest.
The bottom line is that Canada fears angering the USA more than it fears angering China, especially during the pandemic when we must have US agreement to keep the border closed to non-essential travel, as cases continue to spike in several US states.
The real problem is fear of US retaliation in the time of Covid-19
So the real problem, in short, is not caving in to Chinese extortion. It is that the Justice Minister cannot stay the extradition, as he has every right under Canadian law to do — and which the safety and security of the two Michaels demands — because of the very real possibility of deadly retaliation from the USA that would put the safety and security of many more Canadians at risk.
From this perspective, it is understandable that the Government of Canada decided to see if the B.C. court would extricate them from this awful predicament, by finding that the alleged US sanctions-busting by Huawei executive Meng Wanzhou would not constitute a crime absent such sanctions (actually illegal economic countermeasures) in Canada. Unfortunately, the clever American ploy of also charging Meng with fraud for allegedly covering up the alleged sanctions busting, was sufficient for the B.C. court to find that the “dual criminality” requirement was met.
The bigger picture — what kind of future do we want?
The steady right wing din for tougher action against China is not happening in a vacuum. It is part of a fundamental battle of ideas in the USA that Jeffrey Sachs in his April 2019 article, Will America create a cold war with China, describes thus:
American policy towards China is now up for grabs, with hardliners and soft-liners battling for the upper hand. The hardliners view China as an existential threat to American security and interests. The soft-liners regard China as a powerful counterpart, on occasion friend, competitor, or adversary, but not an existential threat. In my view, the hardline approach — to be pursued through protectionist trade policies and aggressive technology policies — would prove disastrous, weakening the world economy and creating a self-fulfilling grave risk of future conflict.
The US cannot recapture the hegemonic global leadership of the past, and it shouldn’t try. The world is shifting toward a multipolar order, in which, as Harvard’s Joseph S. Nye has explained, power is diffused among multiple nation-states, multinational corporations, non-state actors, and diverse communities (in terms of race, gender, religion, and culture). At the same time, challenges are becoming increasingly global in nature, with the pandemic being a case in point.
For the US, the rational response would be to lead a cooperative effort to address shared challenges, including the looming recession, technological disruption, and climate change. For this to work, all stakeholders — including US rivals like China, Russia, and Iran — must be involved.
See: The American Muddle (Sheng and Geng, project-syndicate.org, 26 June 2020).
It is manifestly clear which vision of the future Canada should be doing everything in its power to support and nurture.
(1) Stop digging the hole deeper in Canada–China relations
The PM cannot articulate the real reason why he won’t secure the freedom of the two Michaels and Ms. Meng by having his Justice Minister stay the extradition proceedings — namely, a well-founded fear of vicious American retaliation.
He can, however, stop gratuitously enraging the Chinese dragon, by developing a more truthful and credible set of talking points that do not falsely hide behind the rule of law nor misconstrue the risk to Canadians of kidnapping if the extradition were to be stayed. In short more, not less, diplomatic language from the Prime Minister is required.
(2) Open discreet talks with the Biden campaign, through political intermediaries, to lay the groundwork for a Canadian stay of extradition proceedings should Biden become President
Canada, for many reasons, will fervently hope that Joe Biden is elected the American President in November. Of course, that will not mean the end of the US legal proceedings against Ms. Meng, whether or not the anti-Iran sanctions are eased by the new administration. But what it will mean is that the likelihood of unseemly retaliation for a Canadian stay of extradition proceedings will be immeasurably reduced.
Of course, our Justice Minister David Lametti has inexplicably made this task much harder — at least so long as he is around — by his astonishingly shortsighted declaration on Friday afternoon, 26 July, that he would not intervene in extradition proceedings for Huawei executive Meng Wanzhou before the court process reaches its end.
By every reasonable forecast, the legal case could take several years and there is no telling what might happen over that period, what new information we might learn and how a new American administration might behave. Why the Minister of Justice would think it wise or prudent that he pre-emptively remove his power to stay the proceedings, no matter what may happen over this period of time, is impossible to discern.
We call on the Government of Canada to redouble its diplomatic efforts to secure the release of the two Michaels, to resist misguided calls to retaliate against China and to develop a public narrative more faithful to the real imperatives driving Canada’s approach to the Meng extradition.
Photo credit: Wikimedia Images (Vancouver China Town Millennial Gate)