“The law is clear,” but the political and policy implications are murky

There is, it seems to me, a concerted effort to bring the case of the “Two Michals,” Michael Kovrig and Michael Spavor, two Canadians being detained in China as an act of hostage diplomacy in a larger contest between China and the US-led West, back into the public eye. This, for example, is the (online) “front page” of the Globe and Mail

Screen Shot 2020-06-23 at 16.42.27

… everything “above the fold” as they used to say is about the two unfortunate hostages. Now, just a few weeks ago I speculated that China would offer a swap: the “Two. Michaels” in exchange for Meng Wanzhou and that Justin Trudeau would jump at this, and based on consistently good polls, which persist weeks later, Prime Minister Trudeau would want to call a snap election in the early fall of 2020.

Perhaps I’m just cynical, but the coincidence ~ good polls and renewed interest in the “Two Michales” ~ seems just a bit unsettling to me.

Sean Fine, writing in the Globe and Mail, says that three legal luminaries ~ former Liberal Justice Minister and President Emeritus of rock3the University of Ottawa Allan Rock, former Supreme Court Justice and louise-arbourSpecial Representative of the United Nations Secretary-General for International Migration Louise Arbour, acting on the legal advice of Toronto legal heavyweight Brian Greenspan ~ say that “The Canadian government has the legal authority to set Chinese telecommunications executive Meng Wanzhou free immediately, and is wrongly claiming otherwise after being embarrassed over revelations of political interference in the prosecution of SNC-Lavalin Group Inc. last year.” But, Mr Fine says, “Prime Minister Justin Trudeau and Justice Minister David Lametti say the court process must be allowed to unfold so as not to compromise the independence of Mr. Lametti’s ultimate decision on whether Ms. Meng should be surrendered to the United States for prosecution … [because] … In extradition cases, the justice minister first delegates to his officials a decision on whether a case can proceed; a court then holds hearings and decides whether the legal tests for extraditing a suspect have been met; and then the justice minister decides whether to surrender the suspect for trial. The Meng case is partway through the court hearings, and Mr. Rock says it may be 2024 before a judge rules.

img1261_GREENSPAN-Brian-2018[1]_Aug27Mr Greenspan says they’re wrong because, unlike the SNC-Lacalin imbroglio, which is back in the news for all the wrong reasons, the roles of there Screen Shot 2020-05-26 at 15.34.18Attorney General and the Minister of Justice are  clearly split: Minister David Lametti, as the “attorney-general acts on behalf of the requesting country, in this case the United States, in court; and [as] the justice minister decides on Canada’s overall interests, which can include a consideration of international relations and political concerns.” Allen Rock says that “the Canadian government made missteps in the SNC-Lavalin affair, but that the lesson of that episode is playing out wrongly, and to the detriment of Mr. Kovrig and Mr. Spavor, both of whom China charged last week with espionage … [because] … “That was a traumatizing event” for the government, Mr. Rock said of the SNC-Lavalin episode. “My concern is, once bitten, twice shy. In SNC, they shouldn’t have and they did. Here they can and they should, but they won’t. Because they think they can’t, and they’re wrong.”

I am not going to argue the law … I’m satisfied that Madame Justice Arbour and Messers Greenspan and Rock are correct ~ David Lametti can, at any time, withdraw the Government of Canada’ support for the extradition and Ms Meng will be on her way home and, it is to be hoped, China might release the “Two Michaels” …

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… as an act of good faith … maybe.

But the ethics and the politics surrounding the situation are much less clear.

There has been a lot of discussions, including by me, about the role of the Attorney General ever since the SNC-Lavalin deferred prosecution scandal broke about 15 months ago. The Attorney General is, according to Professor  and Dean of the Common Law Section of the University of Ottawa’s Faculty of Law Adam Dodek, (fist link in this paragraph), “responsible for providing legal advice to Canada’s executive branch and representing the government in legal proceedings.” One can see that the Attorney General is different from the Minister of justice who, Professor Dodek says has “a political role … [being] … charged with developing policy and drafting legislation for the Justice Department.” There is a good argument for the roles being performed by two different people, one appointed, almost like the Auditor General (or even the Governor-General), serving the country’s interests, and the other elected.

But the fact is the Mr Lametti wears both hats in 20202 and he must find a way Screen Shot 2020-03-03 at 07.41.15to balance the responsibilities. Canadians seem to have forgiven Prime Minister Trudeau for coming very close to the legal definition of obstructing justice in the SNC-Screen Shot 2020-05-26 at 15.35.25Lavalin scandal. They are unlikely to be quite as forgiving if he caves in when facing China’s demands and orders Meng Wanzhou freed. The political costs would be too high … they downloadwould be unbearable if an always unpredictable Chinese autocrat, Xi Jinping, then decided to NOT free the “Two Michaels” in order to send another message to Canada and the world about how to deal with China.

Then there is the matter of Donald J Trump.

Allan Rock says that “Canada needs to put its national interest first, and not be concerned about being seen to give in to the bullying of Screen Shot 2020-04-15 at 11.04.45China’s hostage diplomacy, or on the other hand, running afoul of U.S. President Donald Trump by refusing to surrender Ms. Meng. “The very people who tell me we shouldn’t give in to bullies are telling me we better be careful not to do this or the bully [Mr. Trump] will come after us” … [and both he and Madame Justice Arbour] ,,, said that Canada made a higher-stakes decision under Liberal prime minister Jean Chrétien not to join the U.S.-led war in Iraq, “and you know what? They got over it,” Ms. Arbour said.” That’s a fallacious argument and I’m surprised that two such learned people would make it. Donald J Trump is sui generis, he is nothing like George W Bush and his administration works in ways that would be unimaginable to former President Bush. e6f06a15a9458f85416df665e3d84627_99755f498c4_tChina is a big, powerful, important nation but, especially for Canada, the USA is, in every single way that matters, bigger and more powerful and more important. It must be our Number 1 foreign policy priority and anyone who thinks differently is a damned fool.  The simple fact is that President Trump’s reactions ~ less predictable than the wily Xi Jinping because President Trump does just react, sometimes erratically and even explosively, rather than strategizing ~ matter more to Canada than even the lives or liberty of two innocent Canadians.

Some people argue that Prime Minister Trudeau is trying to use the 5G decision (should Huawei be allowed in or not?) as leverage. I suspect it is more about political cowardice and domestic politics. Not annoying China became vitally important while Justin Trudeau was seeking a worthless, temporary, second-class seat on the United Nations Security Council. That’s all over and done with (for now, anyway) so it should be a “no brainer,” right? Not so fast, many, many, many Canadians hate President Trump and so it is is good, Canadian, domestic politics to be seen to be acting against his wishes. He wants Canada to ban Huawei; it is good politics in suburban Montréal, Toronto and Vancouver to defer making that decision.

Eventually, I suspect, Canada will craft a half-measure, rather like the UK is trying to do, allowing one Canadian company to use Huawei‘s equipment but, still, “reducing” Huawei‘s overall participation in our national 5G rollout ~ and the Canadian government will hope the US will accept that. I have it on what I consider to be reliable authority that 5G is already rolling out as 5G.1 (which includes Huawei) and 5G.2 (which is limited to Ericsson and Nokia). The 6G planning process seems to be emerging the way 3G did, in the early 2000s, with two competing groups: a 6G Planning Partnership (6GPP) and an alternative (6GPP2). One of them will involve Huawei and the other will exclude it entirely. The two groups will coordinate their work so that manufacturers will be able to develop equipment useful for both … no one is going to want to buy two mobile phones. It may be 7G (2035) or later before we see one, clear, global standard.

In any case, in this specific case, the government is acting correctly. It is acting in the interests of the established legal process, even though many Canadians’ hearts wish that it would do as Madame Justice Arbour and Professor Rock suggest and toss the law (the extradition process) into the trash bin and try to swap Meng Wanzhou for the “Two Michaels” in a deal which I speculated, some weeks ago might be on the table

4 thoughts on ““The law is clear,” but the political and policy implications are murky

  1. Gwailo it is too late to wheel and deal on the two Michaels. If any prisoner exchange (in Vienna by the Ferris wheel at 2am?) occurs now the chinese win.. We have buckled under to their demands, appear subservient to them… no we are stuck on the current route… personally i like retaliation on the chinese nationals at our universities… one should ‘disappear’ each day to an offshore detention centre (like Aus)…Ellesmere Island maybe… one a day disappears until our lads are freed… it would prove we can play their tough game

  2. Love It! (Especially ‘The Third Man’ reference.) But can you imagine how the grey-faced men and women in their grey suits sitting in their grey officers in Ottawa would react to such a ‘realpolitik’ notion?

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