Canada’s next best steps don’t involve counter sanctions on China

Where do we stand now with the calamitous Canada/China trade and imprisonment issues?

Predictably, little seems to have been accomplished at the Osaka G20 meeting last week. Donald Trump had promised Justin Trudeau he would help Canada with China’s President Xi. Trump later said Meng Wanzhou’s extradition hearing was not even mentioned in his meeting with Xi, but diplomatic sources say it was. Trudeau says that in his exchange with Xi he “raised” the Canadians’ imprisonment issue and is “confident” that Trump did so as well, whatever that means.

Meng’s counsel has belatedly submitted that the federal Minister of Justice is authorized to release Meng under the U.S./ Canada Extradition Treaty on the grounds that her alleged criminal activity is not a criminal offence in Canada.

The U.S. charge is that she fraudulently lied concerning the export to Iran of Huawei-licenced technology, contrary to the U.S.’s Iran trade sanctions. Canada, however, has no non-nuclear trade sanctions with Iran; we are still bound by the multinational Iran Nuclear Deal; and have not prohibited Meng’s company, Huawei, from supplying its technology to us in general or for our 5G Networks.

Minister of Justice Lametti has not agreed to this request from Meng’s lawyers. With widespread opposition party warnings about political intervention and contravention of the “rule of law,” he is unlikely to do so.

In the meantime, the BC Supreme Court proceedings have been unaccountably prolonged. The prosecuting Crown counsel has been given three months to produce further requested documentation. While the hearing will resume on Sept. 23 to review the new evidence, the Court has set Jan. 20, 2020, for commencing final arguments. Why?

What happens to our two imprisoned Canadians in the meantime, as well as the two facing the death sentence, and those in the agricultural sector whose products are barred from import into China?

Opposition proposals for countersanctions reveal a fundamental failure to understand or acknowledge the vast distinctions between Canada and China in both economic capacity and rigidity of political agendas — populations of 37 million vs. 1.386 billion; democracy vs. incontestable authoritarianism.

So what are the realistic options for expedited resolution? First is the recognition that the Meng provisional arrest was made without satisfying the statutory requirement of Section 13 of the Extradition Act, namely that it was in Canada’s “public interest.” The fundamental distinctions between the Canadian and U.S. relations with both Iran and Huawei are outlined above. Either these critical evidentiary differences were not presented to the presiding judge, or they were not given their conclusive weight.

Based on the above, there would be no need for ministerial intervention. The prosecuting Crown counsel is, in accordance with the rule of law, fully entitled to reach this decision, withdraw the application for extradition, and release Meng. The Mark Norman case, despite the accompanying political condemnation, is a persuasive precedent for discontinuing clearly flawed criminal proceedings.

Less attractive, and probably less achievable, is for the BC Supreme Court judge to reassess the elongated case timetable, advise counsel that she requires them to appear at an early date to present their respective submissions on the legal propriety of the December provisional arrest under the Extradition Act.

It would be wrong for either of these options to be subject to the receipt of advance commitment of any kind from China. Then the “rule of law” would genuinely be an issue. But assume that legitimate, evidence-based, legally justified discontinuance of the extradition proceedings is achieved. The legitimate and meaningful case for high level diplomatic intervention by Jean Chrétien, Bob Rae or a similarly qualified federal appointee is then greatly enhanced. The alternative, based on the assumption that somehow Canada has the capacity, even with multinational support, to prevail with China so long as Meng is under arrest, is delusional.