Eddie Goldenberg is a former chief of staff of Prime Minister Jean Chrétien and is now a partner in the law firm of Bennett Jones LLP.
The first stage of the extradition hearings for Meng Wanzhou, the chief financial officer of Chinese telecommunications and technology giant Huawei, who was arrested by the RCMP in Vancouver on Dec. 1, 2018, at the request of the United States and has been out on bail for more than a year, will begin Monday in a Vancouver courtroom. The process is expected to stretch throughout 2020, and appeals could drag on for years after that.
It has also been more than a year since China, in retaliation for Ms. Meng’s arrest, took two innocent Canadians as hostages.
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The first priority of any government must be the liberty of its citizens, and all political parties agree that the Canadian government must spare no effort to obtain the release of Michael Spavor and Michael Kovrig, the two unjustly imprisoned Canadians. They were detained in late 2018, formally arrested the following May and, in December, finally had their cases turned over to Chinese prosecutors, who now must decide how to proceed. Over the past year, it has become clear that the government and the opposition parties have shied away from recognizing reality and acting accordingly, that there is only one surefire way to obtain the freedom of the two Canadians: free Ms. Meng as part of a prisoner exchange.
“To govern is to choose” is a well-known maxim, and anyone who has ever been in government knows that the choice sometimes is between options that are somewhat unpalatable and others that are even more unpalatable. Unfortunately, the choice is not always between good and better. Resolving the situation of the two Canadian hostages is one of those circumstances that will require the government to make a somewhat unpalatable choice.
It has been clear from the start that the Trump administration considers the matter to be in the realm of geopolitics. That is why Ms. Meng was personally targeted when the normal U.S. practice in similar matters is to charge the corporation, not the individual. The U.S. government would not have informed the highest levels of the Canadian government of its intentions before Ms. Meng’s arrest if it had been a simple matter of ordinary criminal law. When President Donald Trump suggested that he might use Ms. Meng as a pawn in his trade dispute with China, he merely corroborated the theory that the reason for the extradition request was political. There can be no doubt that for Mr. Trump the Meng case remains a potential bargaining chip in his trade negotiations with the Chinese.
To achieve the objective of freeing the Canadian hostages, our government must act in accordance with the rule of law, in a manner that puts Canada and Canadians first. Obtaining their freedom should have nothing to do with how we feel about China or the Communist Party of China or the persecution and mass detainment of Uyghurs in Xinjiang. Our relationship with China will then be a matter of legitimate debate, and there will undoubtedly be different points of view expressed. For that matter, unless we are prepared to see the hostages condemned to many years of imprisonment in China, their freedom must not be dependent on what Mr. Trump may tweet.
Even though we may not agree with China’s position, it is essential to understand where the Chinese are coming from. Beijing believes Ms. Meng is a hostage that Canada is holding for Mr. Trump. They believe the extradition request is in no way motivated by alleged criminal behaviour, but instead has everything to do with what they see as the U.S. economic cold war against China – and against Huawei in particular. Whether we like it or not, the Canadian argument that the Meng case is merely a matter of the extradition process following its normal process in a criminal matter is not accepted in China. As a result, there is no circumstance under which China will agree to release the hostages unless Ms. Meng comes home.
Furthermore, in today’s China, President Xi Jinping speaks proudly about how China has overcome the “century of humiliation” by Western powers and is now on the road to the “great rejuvenation of the Chinese nation,” which we could also call “Make China Great Again.” So the idea that pressure from Canada’s Western allies would have any impact on the Chinese, other than perhaps being counterproductive, is a profound misreading of the facts on the ground.
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The Canadian government is therefore faced with two unpalatable options – and must determine which is the least bad. One option, which the government adopted over the past year, is to stand firm on principle, meaning we will not be bullied or give in to Chinese blackmail. But it is perhaps easier to take such a stand when not languishing in a prison cell, subject to tortures such as isolation and sleep deprivation, and denied access to lawyers and family and the outside world – save for 30 minutes once a month with a consular visit – and simple aids such as reading glasses. This option counted on our allies, especially Mr. Trump, persuading the Chinese to release the Canadians. But it is an option that did not work.
Others have recommended a "tough on China” approach, such as withdrawing from the Asian Infrastructure Investment Bank, banning Chinese athletes from training in Canada for the next Olympics or strengthening ties with Taiwan. The reality is that none of those actions would intimidate the Chinese into releasing the hostages. We are simply not in a David and Goliath situation because, in these circumstances, David doesn’t even have a slingshot. Posturing and declaring that we will not be “bullied” may be noble, but if it doesn’t work – and it has not worked for a year – the stark reality for the Canadian hostages is that they are likely to face many long years of confinement in Chinese prisons.
The second option is to do what it will actually take to obtain the release of the Canadians. This means giving up Ms. Meng in exchange for Mr. Spavor and Mr. Kovrig. The government must address whether there is a way, compatible with the rule of law, to allow for the release of Ms. Meng even before the extradition hearing has ended.
A normal extradition process involves a hearing and a decision by a judge, followed sometimes by an appeal to the Minister of Justice before an extradition can be ordered. This can take years. However, there is a provision in the Extradition Act (Section 23(3)) that gives the Minister of Justice the clear authority to put an end to an extradition process at any time. This provision can and should be used in the Meng matter.
The rule of law does not apply solely to seeing an extradition case through to the very end of the judicial process. It applies equally to the use of Section 23(3). Choosing between continuing with a judicial process or using Section 23(3) to release Ms. Meng is therefore not a choice between following the rule of law or violating the rule of law. Either option is compatible with the rule of law. Nor would the use of Section 23(3) to free Ms. Meng in order to procure the release of the two Canadians be, as some have argued, a violation of our extradition treaty with the United States. Section 8 of the treaty provides that whether extradition is granted or not “shall be made in accordance with the law of the requested party.” Section 23(3) of the Extradition Act is part of the law of Canada, therefore its use does not violate the treaty.
The U.S. created the mess we are in. We cannot continue to allow two of our citizens to languish in Chinese prisons because we fear how the U.S. may react if we let Ms. Meng go free. Submitting to unjustified American pressure is no better than submitting to Chinese blackmail. Canada should do in the case of Ms. Meng and Mr. Kovrig and Mr. Spavor what the U.S. did a few weeks ago when it dropped criminal charges against an Iranian scientist and allowed him to return to Iran in order to secure the release of an American who had been accused of spying and sentenced to 10 years in an Iranian prison.
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So which is the lesser of two evils: standing strong for principle and risking the continued imprisonment of two innocent Canadians or doing whatever is necessary to obtain the release of Mr. Spavor and Mr. Kovrig, even if it seems distasteful?
Former prime minister Jean Chrétien once said that when one is painted into a corner, the way out is to just walk on the paint. The Trump administration painted us into a corner, and it is now time for Ottawa to walk on the paint. Therefore, for humanitarian reasons, Canada should release Ms. Meng in return for the freedom of Mr. Kovrig and Mr. Spavor.
There will be plenty of time, once our two citizens are back on home soil, to debate and determine what our future relationship should be with China and, indeed, with the United States.
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