Canada caught between China, U.S. in Meng case
Extradition dilemma raises questions of law, politics, international trade and security
OTTAWA— Canada’s Liberal government is caught between two belligerent superpowers — China and the United States — as it ponders the extraordinary extradition case of Meng Wanzhou.
Prime Minister Justin Trudeau may be wishing he were in the same position a Liberal predecessor, Paul Martin, once was. Martin’s justice minister, Irwin Cotler, swiftly extradited a group of Basque separatists to Spain after getting assurances the wanted men would not be mistreated, and announced their abrupt departure to the surprise of the House of Commons.
Martin rang up Cotler to ask why he was not informed and why he’d had no say. Canadian law says any extradition decision belongs to the justice minister alone, Cotler says he told the prime minister.
“If you get any questions, you can direct them to me, and you can thank me later,” Cotler recalled telling Martin.
“Neither the prime minister nor the cabinet need be consulted,” Cotler said in an interview. “In fact, it protects all that they are not consulted so that a decision is made anchored on the legal merits of the request.”
However, Trudeau doesn’t have the same luxury of being in the dark.
He knew of the Dec. 1 arrest of the Huawei executive Meng Wanzhou days beforehand because his officials gave him a heads-up. And, although he was in Argentina at the G20 with both U.S. President Donald Trump and Chinese President Xi Jinping, he says he told neither leader.
Meng is deputy chair and chief financial officer of Huawei Technologies Inc., China’s telecommunications giant and corporate gem.
The arrest of the daughter of Ren Zhengfei, Huawei’s CEO who retired from the Chinese army’s engineering corps and founded the telecom company that is seeking to become a primary player in the next generation of global wireless networks, has outraged the Chinese government.
As high-profile corporate targets go, it doesn’t get much higher than that.
The U.S. alleges Meng deceived a multinational financial institution, HSBC, which has operations in the U.S., about the level of control Huawei had of another company, Skycom, in an effort to bypass U.S. prohibitions on doing business in Iran.
The extradition dilemma now facing Trudeau and his government is suddenly more complicated. It raises questions of law, politics, international trade and security. It is fraught with geopolitical tension. That’s because the fate of two Canadian citizens detained this week in China could depend on whether Ottawa hands the Huawei executive over to the U.S. justice system. Former Canadian diplomat Michael Kovrig and Canadian businessman Michael Spavor could languish in jail for years awaiting legal processes because China’s foreign ministry has levelled grave accusations against them of harming state security.
No Americans have been detained in the wake of the U.S. request to extradite Meng, as far as anyone knows.
“They go after who they think might be vulnerable,” said Cotler.
China hasn’t said the Meng arrest and the Canadian men’s cases are linked.
But Cotler said China’s detentions of the Canadians “are acts of reprisal” for Canada’s arrest of Meng.
The extradition of Meng Wanzhou has escalated into a crucial test for Canada after the stunning boast by U.S. President Donald Trump, who suggested she could be a bargaining chip in his larger trade and security disputes with China. Trump said he would intervene in her legal case if he thought it would help national security or a trade deal.
“Whatever’s good for this country, I would do,” the U.S. president told Reuters.
Trump’s senior justice officials are now furiously trying to walk back the president’s remark. But the damage is done. In truth, Trump may have done Ottawa a favour.
The minister of justice is the one who will decide whether to proceed with bringing the U.S. extradition request to a Canadian court, and later, if a judge finds enough evidence to send it to trial in the U.S., Jody Wilson-Raybould will decide whether to surrender Meng to American prosecutors. The charges are serious and may carry a possible 30-year jail sentence or $1-million fine.
Canada’s extradition treaty with the U.S. is pretty clear; if there’s evidence the crime she is accused of in the U.S. would constitute a crime if it were committed on Canada, Canada would ordinarily agree. In fact, Ottawa has agreed to more than 90 per cent of American extradition requests to this country, officials say.
There are mandatory grounds for refusing extradition, such as if the person’s already been tried for the offence in Canada; if extradition would violate an individual’s Charter rights to due process, a broad category; or if a prosecution would be for an “improper purpose,” including to prosecute or punish an individual by reason of their race, religion, nationality, ethnic origin, language, or colour, or on other discriminatory grounds.
A minister has discretionary powers to refuse a request; Canada does not extradite to countries that have the death penalty without first obtaining assurances from the other country that it won’t execute the extradited individual.
Prof. Rob Currie with the Schulich School of Law at Dalhousie University says extradition law is “a weird mixture of law and politics,” because the justice minister can take Canada’s foreign relations into account.
“It is a decision that is based on a legal framework, but it’s a decision that is allowed and expected to take into account Canada’s international commitments, international comity (good relations), our relations with other states and the frameworks of cooperation we operate under in … fighting transnational crime,” he said.
And, importantly, the law allows Canada to turn down any request if it is seen as a bid to prosecute a “political offence.”
“The minister may, if she wishes, refuse to extradite if she feels that the prosecution in the requesting state is politicized or if it’s a political crime like treason or espionage,” he said in an interview.
At the same time, Currie said, “It would be unheard of for the minister to say a prosecution on the part of our good friends the Americans was politicized and refuse extradition on that basis.
“That would be like punching Trump, himself, in the nose.”
He agreed the minister must feel enormous political pressure, saying “The Canadians being detained is a great concern, but we cannot be seen to be bending to Chinese pressure.”
Cotler, who is head of the Raoul Wallenberg Centre for Human rights and defends political prisoners around the world including China, said China’s complaints about Meng’s treatment are hypocritical, over the top, and show that country’s “contempt for the rule of law, whether it be ours or theirs.”
China regularly arbitrarily detains citizens, conducts sham trials, and imposes unreasonable punishments on its citizens, lawyers and human rights activists, he said.
Cotler said Trump’s remarks were “astonishing.”
“What Trump has done, he’s basically politicized the process. And by politicizing the process, he’s allowed Meng to raise this” in her fight against extradition, Cotler said.
It could even lead the Canadian minister of justice who will decide in the end “to think differently about it because of the fact because of the fact that Trump’s considerations are not legal,” he said.
“Trump doesn’t seem to understand that there is a rule of law issue here. It’s just a whole transactional approach to the art of a deal, and when you look at it that way you’re really undermining the rule of law.”
Officials would not answer if Meng’s extradition will be discussed by Trudeau and his cabinet, but said, if the justice minister consults with anyone, her reasons for refusing extradition would have to be disclosed to Meng’s defence team.