Despite a flurry of legal activity on both sides of the Pacific this past week, not much has actually changed in the saga of Huawei executive Meng Wanzhou and three Canadians detained in China.
Ms. Meng and her high-priced legal team are still fighting her extradition to the United States tooth and nail. Michael Kovrig and Michael Spavor continue to languish in Chinese custody, their fate ultimately out of their hands. And alleged drug trafficker Robert Schellenberg is still facing execution, his fate now in the hands of China’s Supreme People’s Court.
Mr. Spavor was handed an 11-year prison sentence on espionage charges Wednesday, and a verdict is expected soon in Mr. Kovrig’s case, just as Ms. Meng’s extradition hearing enters its final stages.
“The [Spavor] sentence does not change the dynamic one way or the other,” said Gar Pardy, a former director-general of consular affairs for Canada. “The key remains the slow train wreck that is under way in Vancouver on deciding the legal aspects of the American request for extradition.”
Mr. Pardy is among a number of former Canadian diplomats and officials who have urged Prime Minister Justin Trudeau and the federal government to trade Ms. Meng for the two Michaels. Ottawa has argued that any intervention in the case would undermine judicial independence – though extraditions are ultimately a political decision made by the justice minister – in this case, David Lametti.
There is a slim chance the B.C. Supreme Court could take the matter out of Mr. Lametti and Mr. Trudeau’s hands: The judge hearing Ms. Meng’s case has appeared far more sympathetic to the arguments of her legal team than many expected and has given no indication that she will act as a rubber stamp for the U.S. extradition request.
There is also hope that the U.S. may drop the request, perhaps in exchange for some kind of plea deal with Huawei in which the telecom giant would pay a hefty fine in order to have Ms. Meng set free.
Releasing her without some kind of penalty, Washington and Ottawa have argued, would send a signal to Beijing that “hostage diplomacy” works. But unless the two Western governments are willing to let the two Michaels rot in Chinese prisons, it seems likely that the only party scoring anything like a victory in this mess will be China.
Mr. Spavor’s prison sentence seems designed to give Beijing some wiggle room: 11 years, the equivalent of a $9,600 fine and a deportation order.
Lynette Ong, a specialist in Chinese politics at the University of Toronto, said the verdict left her somewhat optimistic, as it falls on the low end for espionage crimes, which potentially carry a life sentence.
Chinese law does not permit someone sentenced to life in prison (or given a suspended death sentence) to be deported – life means life. The verdict against Mr. Spavor, however, “opens the possibility that he would be allowed to leave China, though we do not know when and under what circumstances,” Prof. Ong said.
Jerome Cohen, a leading expert on Chinese law at New York University, wrote this week that “court judgments often state that deportation should take place after the sentence has been served. But politics and diplomacy can decide when that has been accomplished.”
Prof. Cohen said that in a case he consulted on, an American detained in China was released “on medical grounds” soon after a 10-year sentence was handed down, after a “tense 48 hours” of negotiations behind the scenes by U.S. and Chinese officials.
Most observers agree that for all of China’s bluster this week about Mr. Trudeau and other Canadian officials “grossly interfering with China’s judicial sovereignty” by criticizing the courts’ decisions, the two Michaels may find themselves on a plane home should Ms. Meng be released.
Mr. Schellenberg is unlikely to join them. He was arrested in 2014 and initially sentenced to a 15-year prison term, which he appealed. Weeks after Ms. Meng was detained in B.C., in December, 2018, the court considering his case upgraded the sentence to the death penalty.
Such a decision violates legal norms in almost all jurisdictions, including China, though the court this week – responding to political requirements, not legal ones – predictably rejected the argument that it was contrary to the principle of “no additional sentence on appeal.”
Conservative Leader Erin O’Toole has accused China of “planning to take the life of a Canadian for political reasons.” Mr. Schellenberg’s fate now rests with the country’s supreme court, which must approve his execution. Should it do so, he could be dead within a week; if it does not, it’s likely the best he can hope for is to see his sentence reduced to life without parole.
Both his sentence and public statements suggest Beijing is less willing to negotiate in his case. The state-run tabloid Global Times said this week that his prosecution “has won broad support from the Chinese public, as many detest drug trafficking and believe that having mercy with drug dealers is equal to infringing the rights of millions of Chinese.”
Many Canadians may find the death penalty appalling, but executing drug traffickers – of any nationality – is fairly common in China, and past attempts by foreign governments to win clemency have not been successful.
Nor is Mr. Schellenberg the only Canadian facing execution in China. Three other Canadian citizens – Ye Jianhui, Xu Weihong and Fan Wei – have also been sentenced to death for drug offences since the arrest of Ms. Meng.
While the cruelty of changing Mr. Schellenberg’s lighter sentence to the death penalty has provoked widespread outrage, the others have received less attention back home. And even Mr. Schellenberg has not received anything near the attention and media coverage of the two Michaels, to whom he has now been indelibly linked by China’s decision to process the cases at the same time.
As the families of countless foreigners detained in China can testify, getting any government to speak out on behalf of its citizens is often an uphill battle. Individual diplomats may do their best behind the scenes, a local lawmaker back home may issue a statement or a Foreign Affairs Ministry official may wring their hands publicly over some draconian sentence, but usually little concerted effort is made in criminal cases, even those involving long prison sentences or the death penalty.
Often this is out of what critics argue is a misplaced deference to the Chinese judicial process: Just as a government would not try to intervene in a case in, say, Finland, it would not do so in China. Even in the case of Messrs. Ye, Xu and Fan, Ottawa has called for clemency but it has not denounced the sentences as “arbitrary,” nor have officials challenged their legitimacy. Had Mr. Schellenberg initially been sentenced to death, he too might have attracted less support back in Canada.
Only when the prosecution is so nakedly political, as in the case of the two Michaels, or the sentence so unjust, as in Mr. Schellenberg’s appeal resulting in a death penalty, has Ottawa been forced to make the case a top priority – with limited success.
Critics of this government have demanded firmer action, but what that means remains unclear. Mr. Pardy said “the government is out of options in terms of steps that might help – short of dealing with the extradition of Ms. Meng.
“The best the opposition has been able to say is that they would intensify criticism of Beijing on their policies and actions in Xinjiang toward the Uyghurs,” he said, referring to China’s persecution of the predominantly Muslim minority.
Omar Allam, a former Canadian diplomat turned business consultant, said Ottawa’s options in terms of punitive actions are limited. He listed a few – blocking Huawei from Canada’s 5G networks, cutting off scientific and research links, reducing the number of Chinese students permitted to come to Canada – but warned that “these actions all have consequences and risks that need to be factored in” and may be deemed too costly.
The jailing of the two Michaels has certainly hurt China’s reputation internationally. More than 50 diplomats from 25 countries gathered in a show of solidarity at the Canadian embassy in Beijing this week, a move Chinese officials denounced as “ganging up.” The European Union and the U.S. have also consistently called for the release of the two Canadians.
But beyond the diplomatic fallout, Beijing has suffered few consequences and may yet secure Ms. Meng’s release. Meanwhile, Canada has proven incapable, in the face of Chinese injustice, of protecting its citizens overseas. Whatever the outcome, it is they who have paid the cost.
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