Column/Jeremy Kinsman

Nov. 30th, 2019

It is now a year since Meng Wanzhou, chief financial officer of Huawei Technologies, who is also the daughter of founder Ren Zhengfei, was arrested at Vancouver Airport by the RCMP as she arrived from Hong Kong last Dec. 1 expecting to transfer to a flight to Mexico. It has created a crisis in Canada-China relations and led to the pay-back arrest of two Canadians in China.

The arrest was in response to a “provisional” (i.e. “urgent”) arrest warrant from the U.S. Department of Justice on fraud charges related to violations of U.S. sanctions against Iran.

The U.S. invoked the Canada – U.S. Extradition Treaty, signed in 1971 which is aimed at cross-border criminal activity, people for whom a warrant for arrest has been issued. Ninety per cent of cases, incidentally, are U.S. requests. About 90 per cent, according to DOJ officials, are acceded to. It was not meant for third-country interceptions, such as this case, though they are not excluded.

Canadian Justice officials believe they had no choice but to accede to the request under their obligations under the Treaty.

Having been Canada’s Minister at our Washington Embassy in the 1980s for Political, Security, and Legal Affairs, I disagree. There were requests then (1981-85)  that were refused by both sides because they did not meet the criteria in the treaty.

The Treaty is very explicit as to these. Article 2 specifies “Persons shall be delivered up according to the provisions of this Treaty for any of the offenses listed in the Schedule annexed to this Treaty… …provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one
year.”

Article 4c also excludes crimes “of a political character.”

What had she done? The arrest warrant issued Aug 22, 2018 specifies that Ms. Meng had. in a power-point presentation in 2014 in Hong Kong to a group of bankers (HSBC), provided misleading information about Huawei’s corporate relationship to a Chinese company selling communications switching equipment in Iran, then under U.S. sanctions.

This would qualify under item 16 of offences detailed in the Annex to the Treaty that are eligible, “Fraud by a banker, agent, or by a director or officer of any company.” However, the crime alleged cannot be admitted as eligible just by its title. The Treaty specifies “evidence has to be sufficient according to the laws of the place where the person sought shall be found.”

Whatever Ms. Meng communicated in Hong Kong to HSBC (The Hong Kong and Shanghai Banking Corporation) with regard ultimately to U.S. sanctions on Iran would almost assuredly not meet the criteria of Art 2 as constituting a crime punishable in Canada by at least one year’s imprisonment.

But there was great urgency. Why? A Globe and Mail report on the anniversary of her arrest details the extent to which national security officials in the U.S. were after Huawei, including White House national security advisor and uber-hawk on China and Iran John Bolton. Moreover, the article reports how the Trump Administration had taken “the shackles” off the Department of Justice and the FBI to properly enforce the U.S. Foreign Corrupt Practices Act “to achieve political goals.”

The intelligence that Ms. Meng was coming through YVR was too good to pass up. This would send a major message to China and to Huawei. But they needed Canada to play ball.

Almost anybody with 10 minutes knowledge of the adversarial U.S. policy focus on China and Huawei, and of who Ms. Meng is, would have balked, given the eligibility criteria. Were such people consulted on a move certain to have extreme consequences for Canada? It is unclear.

In 1999, an amendment was made to the administration of the bilateral treaty in the Canadian Department of Justice, in that its administration was delegated from the Minister to officials, and specifically to a dedicated secretariat in Justice. Its operating mandate was to facilitate extraditions. They work within a narrow justice/police community.

The arrest came at a possibly critical time in Canada/U.S. relations over the new NAFTA. To the extent that top offiicals in the PMO had time to consider the request, they would have been very swayed by a need not to rock that boat, and the Canadian Embassy in Washington would have been seeing this as an opportunity to win points with the locals. In the Nov. 30 Globe piece by Robert Fife and Steven Chase, former Ambassador David MacNaughton says there “was little political involvement at the last minute” because the request “came on us suddenly.” But for what it’s worth. witnesses report MacNaughton was mighty pleased when it happened.

Was Global Affairs consulted, and especially the China experts? No one admits to it. For a while now, Global’s deputy ministers have been newbies from elsewhere in government.

Minister Chrystia Freeland would have got it but she was out of the country.

So, it happened.

When Meng Wanzhou appeared for bail hearings in Vancouver, the
Canadian Justice department lawyer who represented the U.S. before the judge went above and beyond to depict her as an unreliable flight risk. All of this excess exacerbated Chinese reaction already abraded by the fact that XI Jinping had met both Donald Trump and Trudeau at a G-20 Summit on Nov. 30 and Dec. 1 just when the ambush of Ms. Meng was being plotted and executed and yet there was no heads-up from either North American leader.

When did Canada inform the Chinese government? Unclear.

And as for the Prime Minister, what did he know and when did he know it? His office initially put out he had been informed days in advance (so as not to leave an impression he didn’t know everything going on, which seemed to be the case over to then-Minister Jody Wilson-Raybould,) but solely for information purposes (given criticism for having “interfered” in the SNC fiasco). Now, the account of advance warning has changed, to “just a few hours.”

Anyway, a few days later, the Chinese arrested Michael Kovrig, a Canadian Foreign Service Officer who had been Political Counsellor at our Embassy in Beijing, and who was now on leave without pay to take on an assignment for the International Crisis Group, and based in Hong Kong. He was in mainland China on a personal break. (I was best man in 1967 at the wedding of Michael’s parents, Prof. Bennett Kovrig and the late Marina Kovrig.)

Then, the Chinese grabbed Michael Spavor, a free-lancing tour operator with unusual ties to North Korea.

The Chinese reaction was appalling. It is, of course, unacceptable. It has seriously eroded China’s image in Canada, leading to angry pieces calling on Canada to scale way back relations with China, and so on.

The Chinese consider our conniving in what they see as the
politically-motivated grab of Meng on behalf of the U.S. as being appalling and an indication we are a vassal state.

The Chinese Ambassador says we have to admit our “mistake.” Will they admit theirs, in cynically grabbing Kovrig and Spavor?

The fact is that everybody does dumb stuff some of the time. Chrystia Freeland has loyally tried to make it a rule-of-law issue (“We are. They’re not.”) but it would have been equally rule-of-law to push back at the outset. My friend Mel Cappe, a former Clerk of the Privy Council, has taken a rule-of-law diehard belief stance on this; I think it’s a tough call. But it’s absolutely clear it was made hurriedly, had horrible consequences, and we need an outcome that works.

It’s past time to get past the name-calling and do what has to be done. In 1986, the FBI arrested a Soviet diplomat in New York for spying. Days later, the Soviets arrested the Washington Post Moscow correspondent Nicholas Daniloff. So, talks were held and three weeks later the two were on planes to respective homes. End of story.

Yet, Michael Kovrig and Michael Spavor are still in prison. So, our election’s over, let’s make the deal, Some Canadians will see it as caving in to Chinese “bullying.” What do they propose? Does anyone think the Chinese are remotely impressed by the tepid statements of support from our “allies?”

Of course, the Canadian judge may just let her go in due course. If not, it will be up to the justice minister. But when?

And the Americans? They had their chance – it was proposed to Trudeau he could, in June when they met, offer to Trump the chance to drop the extradition request and use the credit to play in all-important U.S. bilateral trade talks with China. It’s unclear whether Trudeau ever made the proposal.

There is a productive narrative to communicate between Canada and China. There needs to be someone of stature, probably the new Foreign Minister, François-Philippe Champagne, to try. There’s no servility in this. We’re not a super-power. But we count. And we want to count a buoyant economic relationship with China, our second largest trading partner, as essential to our growth. And not negligible to theirs. But on civic values, we differ: there it is. Canada is not for the foreseeable future going to be as friendly as we
thought we could be.

Right now, we are roadkill on a China-America collision. And we shouldn’t think either give a damn.

It’s past time to wrap this up.

Policy Magazine Contributing Writer Jeremy Kinsman, former Canadian Ambassdor to the EU and Moscow, and former High Commissioner to London, is a distinguished fellow of the Canadian International Council.