The Meng Affair: A Solution for Canada
In 1998, General Augusto Pinochet of Chile traveled to London to see his doctor and his friend Margaret Thatcher. He had made the trip several times, but on this occasion a Spanish judge had filed a warrant for his arrest. The warrant was served, Pinochet was arrested and prevented from leaving the country.
In 2018, Meng Wanzhou traveled from China to Canada on her way to a conference in Mexico. She had made the trip to Canada on numerous occasions and even owned property in Vancouver. But on this occasion, authorities in the United States had prepared an criminal complaint charging her with violations of American laws relating to Iran.
Pinochet was accused of committing acts not in the United Kingdom, but in Chile. Under Spanish law, these acts were a violation of Spanish law. Meng was accused of committing acts not in Canada nor in the United States. Under American law, the off-again, on-again sanctions against Iran are given extraterritorial application.
"Extraterritorial" is a bad word in China. A very bad word.
The Chilean Air Force sent a passenger aircraft from Santiago to London where it waited for the moment to take the General home. That moment came when the British courts ruled against extradition on the grounds of ill health. Politics had nothing to do with the decision, although it is clear that the fight over extradition was between Spain and Chile.
In the Meng case, the fight is between the United States and China. The two countries are in the middle of a trade dispute and the President of the United States has conceded that the Meng case is part of that dispute. No Canadian laws have been broken. Canada is, in effect, a mere bystander. Meanwhile China has taken action of various kinds against two Canadian citizens in China.
What should Canada do? It has a treaty obligation with the United States. But Canada has no dog in this fight and faces the threat of real consequences should it accede to the U.S. extradition request. Clearly, a technical solution is called for, and here it is.
First, the Prime Minister should, through its representatives, let China know that if Canada were to take any actions which might be viewed favorably by the Peoples Republic, that it would expect reciprocal actions. At the same time, American diplomats would be reminded that it is unfortunate that Canada has been caught in a dispute between the United States and China.
Canada can directly ask whether the United States will indemnify Canada for any actions taken against it by China. I already know the U.S. response to the question, "what will you do if China imposes trade sanctions on Canada on account of this affair?"
Oh, they might weep and wail, but the Americans will say, in essence, "we will do nothing. We will not indemnify Canada."
So here is a modest proposal to resolve the matter, though keep in mind it is the principle here and not the particulars that count. The day before* the next hearing, a monolingual French-speaking judge will be substituted for the current judge in Vancouver. At the hearing, she will note that the American extradition request was not submitted in French. Or if it was submitted in French--this is utterly unlikely--that it suffers from technical issues. Resolving those technical issues could take a while. While those technical issues are being worked on, Meng's bond conditions are enlarged to permit her to return to China on the condition she will return to Vancouver if asked.
The American lawyers in court that day will be shocked, but the American diplomats in Ottawa know that it is coming after their negative answer.
The plane, of course, will be waiting at the airport, fueled and ready to take her away. The Huawei portion of the trade dispute will be resolved in a manner favorable to Meng when that dispute is inevitably resolved. Wal-Mart is China and middle America must have Walmart. Without China there is no iPhone. The two countries are in a symbiotic relationship.
You may say this plan will not work because there is no French language requirement for extradition requests, you miss the nature of the judiciary. The law is whatever the first instance judge says it is. Interlocutory appeal is an exception. Not only does every court have local rules, every judge has her own local rules.
Anyone who has ever filed a federal brief in an appellate matter** knows that the rules are hypertechnical and change without warning. There are rules governing the placement and color of wax seals on letters rogatory. Certainly a technical omission can be found or created. Because the omission will be technical in nature, it is no one's fault and no one is responsible. Canada saves face and so does the United States.
What about the rule of law? Meng is not accused of a malum in se crime, but an American regulatory and political violation which is not against the law in her own country. Indeed, it is not even a violation of the law in Canada.
By the way, if you think that this scenario has not already been discussed in Ottawa, Washington and Beijing, you are more naive than I am.***
Oh, and what were the long term diplomatic consequences of Britain's refusal to honor Spain's extradition request for General Pinochet?
There weren't any.
Could someone please pass this note to Justin?
* Thailand changed the judge the day before a final hearing in a closely-watched case involving a decades-long dispute with Saudi Arabia. The new judge's rulings "appear inconsistent" with earlier rulings in the case.
**Here, the rules are quite granular and even address how words should be counted: a 20,000 word brief may contain more than 20,000 words because certain words are not counted, but if the amount of counted words exceeds the permitted amount, the brief will be rejected.
*** See, https://www.cbc.ca/news/politics/kelly-craft-ambassador-china-meng-1.5013176