2 years after Meng Wanzhou’s arrest, fate of ‘2 Michaels,’ China relationship hang in balance

Her presence in B.C. Supreme Court represents a kind of collision of worlds: the slow drip of the legal process to determine if Meng should be extradited to the United States to face trial on charges of fraud and conspiracy on the one hand, and the urgent need for action on behalf of two Canadians whose fates appear tied to Meng’s on the other.

Kovrig, a former diplomat, and entrepreneur Michael Spavor were detained by Chinese authorities nine days after Meng’s arrest at Vancouver International Airport on Dec. 1, 2018.

They have  been charged with spying in a case most observers believe is simple retaliation for Canada’s arrest of Huawei’s chief financial officer at the request of the U.S.

Nadjibulla is separated from Kovrig but remains his most vocal advocate. As the second anniversary of Meng’s arrest rolls around, she says it has become impossible to detach Meng’s situation from that of the two Michaels, as the men are known.

“I have been following Meng’s extradition case very closely because it is inextricably linked to Michael’s unjust detention in China,” Nadjibulla told CBC News.

“I believe that an end to her extradition case, by one means or another, would open up the path to Michael’s liberation as well.”

Accused of lying

It’s been two years since Meng stepped off a Cathay Pacific flight from Hong Kong onto a jetway, where she was intercepted by Canada Border Services Agency (CBSA) officers and her phones were bagged as RCMP officers watched unobserved from a short distance away.

Police had obtained a provisional warrant for Meng’s arrest the day before at the request of the U.S. Department of Justice.

The 48-year-old is charged with lying to an HSBC banker in Hong Kong in August 2013 about Huawei’s control of a subsidiary that is accused of violating U.S. economic sanctions against Iran.

Prosecutors claim that by relying on Meng’s alleged lies to continue a financial relationship with Huawei, HSBC was placed at risk of loss and prosecution.

Meng has denied the accusations against her.

“Ms. Meng is staying patient and positive,” said Alykhan Velshi, vice-president of corporate affairs at Huawei Canada. “It can be trying at times because she knows the charges against her are false. She believes that she’s a pawn in a global game of chess.

“But right from the start, she’s always expressed faith in Canada’s system of justice.”

Huawei called a security threat by U.S.

Meng is the daughter of Huawei’s billionaire founder, Ren Zhengfei.

Her arrest came as the United States was beginning a campaign to exclude Huawei from being part of the country’s next generation of wireless technology — known as 5G. The U.S., one of five countries belonging to the Five Eyes intelligence-sharing network, has labelled the telecommunications giant a security threat and called on its allies to follow suit.

Other members of the Five Eyes network — the United Kingdom, Australia and New Zealand — have all blocked the use of Huawei’s technology, while Canada has still not decided if Huawei can be part of its 5G grid.

Yves Tiberghien, a political science professor at the University of British Columbia in Vancouver, said Meng’s arrest has highlighted questions over the future of wireless technology, as well as the trade battle between the U.S. and China, which has its roots in concerns over intellectual property theft.

But he said the case also speaks to the Americans’ use of sanctions law and its financial system to pressure rivals, as well as China’s hard-line tactics and lack of respect for human rights — as seen in the country’s targeting of Canadian exports and the imprisonment of Kovrig and Spavor.

“This is at the intersection of all those fault lines,” Tiberghien said.

“For Canadians, the No. 1 story is the two Michaels, and so there is a lot of frustration in Canada, and the plight of the two Michaels is a prism to understand a much more aggressive China.”

First moments dissected

The case also promises to test Canada’s extradition law as Meng’s legal team painstakingly exposes every element of the case to scrutiny — beginning with the moments that immediately followed her first steps on Canadian soil.

CBSA officers questioned Meng for almost three hours before they handed her over to the RCMP. Her lawyers claim the two agencies conspired with the U.S. Federal Bureau of Investigation to have customs officers question her without a lawyer, in violation of her rights.

The officers who were involved in the arrest have been on the witness stand in recent weeks, giving testimony that the defence is hoping can be used to bolster an argument to have the case tossed out next spring for alleged abuse of process.

RCMP officers have testified that they deferred to CBSA jurisdiction as “gatekeepers” to Canada, and the border officers claimed that legitimate concerns about Meng as a potential national security threat warranted the beginning of an admissibility exam.

But working against the Crown, a CBSA officer gave the RCMP a piece of paper on which he wrote the passcodes to her phones, allegedly by mistake. And an RCMP staff sergeant whom the defence accuses of sending the serial numbers belonging to Meng’s electronic devices to the FBI is refusing to testify.

All have denied any wrongdoing or collusion. Their testimony, originally scheduled to last two weeks, has expanded to at least four, likely pushing other dates in the extradition proceedings further into 2021.

Legal experts think Lametti should step in

It’s hard to know whether the evidence points to conspiracy, business as usual or a sloppiness that fits somewhere in the middle.

Associate Chief Justice Heather Holmes has remarked on the huge amount of detail that has emerged from the testimony so far, asking the defence and the Crown to ready submissions on what it all means as she prepares to wade through it.

The defence also plans to argue that U.S. President Donald Trump is using Meng as a bargaining chip in trade with China and that the United States deliberately misled Canada into the extradition proceedings by omitting key facts that undermined the strength of the case.

Gary Botting, a Vancouver-based legal expert and author on extradition law, said he doesn’t expect those arguments will ultimately be substantive enough to derail the proceedings. 

He agrees with high-profile supporters of the two Michaels — such as former Liberal justice minister Allan Rock and former Supreme Court of Canada justice Louise Arbour — who say there is nothing stopping Justice Minister David Lametti from intervening to end the case.

The Liberal government has repeatedly stated that the rule of law has to play out in court before Lametti can weigh in, but over the summer, Rock, Arbour and others sought a legal opinion from Toronto lawyer Brian Greenspan, who said Lametti has the ability to act at any time.

Botting said he thinks he should. The facts of the case are weak, he said, and he’s troubled by Canada being pulled into a request involving a Chinese national, a British bank and a lie that allegedly happened in Hong Kong.

“I think it’s significant in the sense that it’s very clear that the minister of justice has complete control over who is sent over to a foreign country upon a request for extradition,” Botting said.

“He can say no at any point.”

‘Legal process is likely to take years’

Prime Minister Justin Trudeau recently congratulated U.S. president-elect Joe Biden on his victory in last month’s election. He also brought up the issue of the two Michaels, but there’s no indication of what a new U.S. administration might mean for the proceedings.

Nadjibulla said she’ll continue to attend Meng’s court proceedings, which began last fall, if she can. And wait.

“Given the complexities of this extradition request and absent an intervention by the U.S. or Canadian authorities, the legal process is likely to take years,” she said.

Meng has been living under a form of house arrest since her release on $10 million bail, a little more than a week after she was arrested.

She is required to wear a GPS monitoring bracelet on her ankle and is trailed by around-the-clock security, whom she pays to ensure she doesn’t travel beyond court-ordered boundaries that stop short of the ferry terminals and airport.

It’s a far cry from the conditions Kovrig and Spavor have endured since they were first detained in China. Kovrig has spent months in solitary confinement. The COVID-19 pandemic also meant both men were cut off from consular visits last January.

They were only recently allowed two virtual visits with the Canadian ambassador.

China has provided no evidence of the claims against them. They’ve also been given no idea of when they might face a trial.

Unlike Meng, though, the outcome — if it comes to that — is in little doubt.

Experts say China has a 99.9 per cent conviction rate.