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Showing posts with label Meng extradition. Show all posts
Showing posts with label Meng extradition. Show all posts

Monday, 19 April 2021

Canada's Talking Tough Is an Embarrassing Display of Weakness

 Whatever happened to "speak softly and carry a big stick"?

In the last election campaign only Yves-François Blanchet, leader of the Bloc Québécois, dared to say the obvious that in arresting Meng, Canada was trying to display muscles it did not have.  Blanchet's daring proves that it takes a politician with nothing to lose to speak the obvious truth. In the ongoing US-China fisticuffs, Canada is playing the role of the Milquetoast sidekick whose tremulous tough talk only emphasizes his weakness. 

Canada's only legal course of action is the one it refuses to acknowledge

According to the Wall Street Journal, US Justice has been arranging to offer Huawei and Meng a deferred prosecution agreement.  Meng herself has balked at the deferral requirement that she plead guilty before returning to China.  Senator Yuen Pau Woo, who has for years worked back-channel diplomacy with China on Canada's behalf,  has warned that if we leave it to the US to release Meng, we will be putting Michael Korvig and Michael Spivak at further risk.  Based on his experience in Sino-Canadian negotiations, the Senator has explained that China will need a gesture of respect from Canada in order to guarantee the safety of the Canadians.  Canadian Conservatives, however, cannot resist another opportunity for bravado:  Senator Leo Housakos said he was appalled by the suggestion that Canada should recognize China’s judicial system as legitimate.



The Future looks bright but Canada doesn't

Lisa Monaco has been nominated as the Democratic replacement for Richard Donoghue as Deputy Attorney General.  With extensive experience in national security, counter-terrorism, extradition and hostage negotiation, and cyber espionage, she appears an ideal candidate for the position.  When asked about the request for Meng Wanzhou's extradition, she immediately said (12 Dec. 2018) what no Canadian politician, civil servant, or journalist dared to say then or since about the politics of extradition:  “I think as a matter of law Trump could direct the Justice Department to drop the prosecution that is the basis of the extradition request.”  In Canada, "as a matter of law," extradition is a political decision:  a simple truth which cannot be spoken, no matter what the cost.

Ms. Monaco went on to say that she didn't think it was a good idea for Trump to interfere.  Fair enough, but she immediately established what the law permitted.  In Canada, it took two years for CBC to give former Supreme Court Justice and UN High Commissioner for Human Rights, Louise Arbour a platform to explain that "as a matter of law," in Canada, Meng's arrest and potential extradition was a political decision.  Canadians just didn't get what she was explaining.  Knowing and following the law in Canada, as Arbour was recommending, was interpreted as advocating an illegal exchange of hostages. 

The Cabal is gone, but Canadian "justice" plods on

The cabal of American anti-China super-hawks (John Bolton, Steve Bannon, and Richard Donghue), who concocted the Meng arrest and extradition request, are all gone.  The Canadian judicial bureaucracy plods on without considering whether, in view of all the circumstances,  the original extradition request was fair and just, because this is a question which only the Canadian Minister of Justice can, by law, decide.

Is the Biden administration hoping that Canada will show some backbone?

The first meeting of the Biden administration's foreign affairs team with their Chinese counterparts did not go well.  However, the USA and China have reportedly made some progress on climate talks.  The new US administration has signalled interest in a return to the Iran-USA nuclear treaty and the lifting of sanctions--the underlying basis for the accusations of "bank fraud" against Meng.  

Canada's releasing Meng would likely dovetail with current trends in the Biden White House while ridding the US administration of a needless obstacle in negotiations with China--not to mention being beneficial to imprisoned Canadians.  The problem is:  how does the Liberal government walk back the all-too-obvious, bald-faced lie that extradition is a judicial, non-political decision, which they have been repeating for two and a half years, while the Conservatives are grandstanding with hyperbolic anti-China rhetoric?



 

Saturday, 10 April 2021

World War III: Will History Record that Jody Wilson-Raybould Was the Canadian Gavrilo Princip?

 "If I listened to John Bolton, we would have had world war six by now!"

                                                        Donald Trump, President of the USA

Homo Sapiens?  Are we?

When Yuval Noah Harari speculated in Sapiens:  A Brief History of Humankind, rather off-handedly, that the human species was unlikely to be around for another thousand years, I thought he was exaggerating.  These days, I'm not so sure.  One thousand years is beginning to sound optimistic.

The Doomsday Clock

In 2020, the Doomsday Clock moved to 100 seconds 'til midnight.  According to the "Thucydides trap" hypothesis, a war between China and the USA isn't just possible, it is statistically probable. When he first presented this hypothesis in 2015, Harvard professor Graham Allison argued that 

Managing this relationship [China/USA] without war will demand sustained attention, week by week, at the highest level in both countries. It will entail a depth of mutual understanding not seen since the Henry Kissinger-Zhou Enlai conversations in the 1970s. Most significantly, it will mean more radical changes in attitudes and actions, by leaders and publics alike, than anyone has yet imagined.

Since 2015, we have been moving rapidly in the opposite direction, with marked acceleration in 2021.  According to the 2021--Bulletin of the Atomic Scientists:

US and Russian nuclear modernization efforts continued to accelerate, and North Korea, China, India, and Pakistan pursued “improved” and larger nuclear forces. Some of these modernization programs are beginning to field weapons with dangerous enhancements, like Russia’s nuclear-tipped Avangard hypersonic glide vehicles, which are being installed on new SS-29 (Sarmat) missiles designed to replace 1980s-era intercontinental ballistic missiles (ICBMs). Russia continues to field battalions of intermediate-range, ground-launched, nuclear-armed missiles—missiles previously banned by the now-defunct Intermediate-range Nuclear Forces Treaty, from which the United States withdrew in 2019. China, which has historically relied on a small and constrained nuclear arsenal, is expanding its capabilities and deploying multiple, independently retargetable warheads on some of its ICBMs and will likely add more in the coming year.

The Triggers of war

The causes of war usually involve complicated gestalts which experts will spend generations attempting to untangle and explain. The causes of the Vietnam War are entangled with the vagueries and incoherence of an ideological Cold War which make them near impossible to fully understand even fifty years later.  However, in our high-school history classes, we Boomers were always instructed about the "triggers of war."  For example, the Spanish-American War was triggered by the sinking of the USS Maine.  "Remember the Maine" became the battle cry of the war; however, subsequent investigations concluded that the sinking of the Maine was likely an accident caused by an internal explosion onboard. (For more recent "triggers" see Petrodollar Warfare: Understanding the US Obsession with Iran



The most significant trigger of all time was a 19-year-old Bosnian-Serb named Gavrilo Princip, who assassinated Archduke Franz Ferdinand of Austria and his wife, Sophie, in Sarajevo on 28 June 1914, which led to World War I which, arguably, with the botched Treaty of Versailles, led to World War II.  I first alluded to Gavrilo Princip in 2018 in a post on "The Chaos Theory of International Trade." 

Imagine a high-school history class after World War III. There are a lot of "ifs" here: if there is a third world war, if the Species survives, and if History is still taught in high school.


A History of the future

My historical narrative begins with Richard Donoghue, a young army officer who joins JAG (Judge Advocate General's Corps), first as an attorney, then becomes a judge.  In 2011, he accepts a position as vice president and Chief Litigator for CA Technologies, one of the largest tech companies in the world (in the top 100 according to Bloomberg).  [CA needed a good lawyer.  In 2006, the chairman of the board was sentenced to 12 years in prison for fraud.]  January 2,  2018, Donoghue leaves CA to become US Attorney for the Eastern District of New York.  Eight months later (22 August 2018),  Donoghue issues a warrant for the arrest of Meng Wanzhou, CFO of Huawei and daughter of the company's founder

Why was Meng arrested?

Why? [Try explaining this to a class of high-school students!]  The charge is "bank fraud."  For most people, "bank fraud" means she stole money, but not in this case. According to the indictment, at a meeting in a tea-house in Hong Kong in 2013 she allegedly told an executive of HSBC (Hong Kong Shanghai Banking Corporation) that Huawei did not control a company called Skycom which was doing business in Iran in contravention of US sanctions.

Is she guilty?

Did she really say this?  Did she really fool HSBC into contravening US sanctions?  Who knows?  Does it really matter? HSBC had already been convicted of money laundering, including making investments in Iran, but Meng's "lying," saying or not saying, really has no bearing on the ultimate story.  There was no precedent for arresting a business executive for moving money in Iran, though many companies had been convicted and paid fines.  Meng was arrested because the USA, for political reasons, ideological reasons, business reasons, security reasons (choose the one which makes the most sense to you), was out to get Huawei.  Meng (and Canada), it has become evident, were collateral damage in the plan to undermine Huawei.  The sensible thing for Canada to do was just get out of the way, but it was up to the Minister of Justice, Jody Wilson-Raybould, to get us out of the way.

Meng was traveling the world as Huawei's leading sales-person but, apparently, Donoghue couldn't find a country willing to serve his warrant.  Then, on December 1, 2018, he asked the Canadian Minister of Justice, Jody Wilson-Raybould, in keeping with the Treaty on Extradition Between the Government of Canada and the Government of the United States of America and the Canadian Extradition Act to have Meng arrested, and she did.

Why arrest Meng in Canada?

Why did she accept to have Meng arrested?  [Try explaining this to a high-school class!]  Why would she accept to proceed with this unprecedented arrest which would have predictable and dire political consequences?  To most of the world, the arrest would appear arbitrary and illegal, Canada kowtowing to US hegemony--showing the Americans that Canada would ditch its trade deals with China if that's what the Trump White House wanted.  In truth, the Americans, that is, Donoghue did the minimum in asking Canada to serve the warrant.  Chances are they were surprised by how easy it was to get Canadian law enforcement onboard even to the point of "accidentally" contravening Meng's rights. Donoghue did the necessary,  specifying that the crime was "bank fraud," which was on the Treaty's list of extraditable offenses. And he went through the motions of a Grand Jury trial, which would have been a foregone conclusion.  

Is there any chance that the USA will keep a Chinese executive in prison?

Has anybody noticed how little the Americans have to say about the seriousness of Meng's crimes?  Clearly, the Americans are keeping their options open; allowing them to release Meng at a later date without much fanfare.  The last thing the Americans want is to have a major Chinese executive in a US jail, while they continue to do 100 to 150 billion dollars in trade every year with China.  Can you imagine a situation--with Meng in a US jail--where every American business executive who travels to China or any country where China holds influence would risk arrest and/or extradition? Meng's extradition to the USA allows only three possibilities:  1) she and/or Huawei will pay a fine proving that she should never have been extradited in the first place (the Extradition Act and the Treaty specify that the minimum requirement to justify extradition is one year of imprisonment), 2) an all-out Sino-American war or 3) she will be released (without prejudice) and some US Democrat will express media-wide surprise that Canada went along with the ill-conceived Republican plot (orchestrated by John Bolton and Richard Donoghue) to arrest her.

Richard Donoghue's conflict of interest

I originally speculated that there might be a financial pay-off for Donoghue from CA Technologies for slowing down a competitor--Huawei.  But CA Technologies was sold to Broadcom in 2018, so Donoghue's pay-off would probably have to come elsewhere. 

Donaghue was given the honour of announcing the conviction of El Chapo, head of the Sinaloa drug cartel, in 2019.  Of course, attorneys, NYPD, FBI, DEA, Homeland Security, etc, etc, had been working the case for 30 years, but Donaghue got the plum of announcing the conviction after little more than a year on the job.  Then he was promoted to special duties on the Ukraine file.  In public media, no-one seemed to know exactly what "Ukraine file" meant, but I interpreted he was assigned to getting the dirt on Hunter Biden. When William Barr resigned as Attorney general, Deputy Attorney General Rosen replaced him, and Donald Trump named Donoghue the new Deputy Attorney General.

Did Trump know?

Did Trump know the very day he was having a one-on-one meeting with Xi that Donoghue was having Meng arrested in Vancouver?  No.  Despite hedging in the Guardian interview, claiming he didn't know if Trump knew, John Bolten confirms in this book that he, as National Security Advisor, had been informed of Meng's arrest and decided not to tell President Trump.  Trump was incredulous when he found out and, according to Josh Rogin in Chaos under Heaven, complained that they had "arrested the Ivanka Trump of China."  

Why did Jody Wilson-Raybould arrest "the Ivanka Trump of China"?

Why did Jody Wilson-Raybould arrest "the Ivanka Trump of China"?  When Prime Minister Justin Trudeau was asked about the arrest:

“The appropriate authorities took the decisions in this case,” he told reporters. “We were advised by them with a few days’ notice that this was in the works but of course there was no engagement or involvement in the political level in this decision because we respect the independence of our judicial processes.”

If extradition isn't political, why was the Prime Minister informed in advance? Who were "the appropriate authorities"?  According to the Canadian Extradition Act, the only appropriate authority was the Minister of Justice, Jody Wilson-Raybould.  Who is "them" in the PM's statement?  Did the PM think that Richard Donoghue or the American DOJ was the appropriate authority to decide a Canadian extradition case?  As I've pointed out a dozen times and a dozen different ways, the claim that in Canadian extradition law, "there is no engagement or involvement in the political level in this decision" is completely wrong.  It is easy to disprove the claim of the independence of the judicial processes in extradition cases with a quick click on the Canadian Extradition Act and 15 minutes of reading.  I think we can forgive the PM for not knowing the Canadian Extradition Act just days after (and before) Meng's arrest.  But what about Jody Wilson-Raybould?  What about the "free" and "independent" Canadian media which has been repeating or ignoring this falsehood for over two years now?

Who makes extradition decisions?  The Minister? Or "officials"?

Eleven days after Meng's arrest, Jody Wilson-Raybould issued a statement, in lockstep with the PM's misinformation, saying that "The decision to seek a provisional arrest warrant from the court is made by Department of Justice officials without any political interference or direction." I believe that it may be common practice for "Department of Justice officials" to seek an arrest warrant without necessarily consulting the Minister of Justice, but this was obviously no typical extradition case.  Moreover, what the law (The Extradition Act) specifies is:

Since Jody Wilson-Raybould was both Minister of Justice and Attorney General, the law specifies that Jody Wilson-Raybould "may" (she could have ignored or refused the request)  authorize herself "to apply for a provisional arrest warrant."  Nowhere does it say that DOJ officials were supposed to make the decision and keep Jody Wilson-Raybould out of the loop.

Why would Jody Wilson-Raybould pass the buck to underlings?

Why would Jody Wilson-Raybould duck her responsibilities as Minister of Justice?  Well, there was the SNC Lavalin case.   [Try explaining this to high-school students!]  We've already been there, but the short version is that the PMO had been putting pressure on JWR to break the law and give SNC Lavalin a pass on its various bribery crimes.  JWR resisted and was on the verge of being demoted out of Justice for her resistance when Meng was arrested.  

The combination of the laws governing Remediation Agreements (a new, Liberal version of Deferred Prosecution Agreements) and those governing the Public Prosecutors Office made it impossible for JWR to do what the PMO was asking without breaking the law.  The Extradition Act is the exact opposite in terms of the Minister getting involved.  The Act makes it the Minister's responsibility to investigate and make a decision.  Would the public understand this difference?  Did politicians know the difference?  Both Trudeau and Freeland have been very public in denying this distinction and insisting that extradition is a judicial and not a political decision--despite the explicit wording of the Act and the Supreme Court's ruling to confirm that extradition is an "executive"; i.e., political decision.

When Allen Rock, former Minister of Justice, was on Power and Politics to present the argument that Meng should be released, Vassy Kapelos asked him if he had ever intervened in an extradition case.  He hadn't.  I was struck by his response but then it occurred to me:  politicians are politicians.  Politicians don't like to get publicly involved in extradition cases because there is nothing for a politician to gain.  No matter what decision they make, they will be criticized by one quarter or another.  For a politician, it's always better to leave the impression that an extradition was decided by anonymous officials.

We shouldn't be too surprised that JWR decided not to take the heat and opted for "bureaucracy as usual" despite the obvious that this case was not "as usual." Someone from the PMO should have pointed out her power according to the law: 

Since the PMO and JWR were already at odds (not speaking to each other?) over SNC Lavalin, we can imagine that in the end no-one said anything.

Now what?

The atomic scientists who manage the Doomsday Clock point out that 

Unchecked internet disinformation could have even more drastic consequences in a nuclear crisis, perhaps leading to a nuclear war that ends world civilization. Disinformation efforts across communications systems are at this moment undermining responses to climate change in many countries. The need for deep thinking and careful, effective action to counter the effects of internet-enabled disinformation has never been clearer.

Are we at war with China?

The general Canadian public could be forgiven for imagining that we are already at war with China.  China has been accused of genocide in terms usually reserved for the Holocaust.  The CCP (Chinese Communist Party) is being compared to the Third Reich and Xi Jinping to Hitler.  China is being accused of undermining Canadian sovereignty, intimidating Canadian citizens, taking over Canadian businesses, manipulating Canadian politicians, mistreating Canadian workers, arbitrarily imprisoning Canadians in China, infiltrating Canadian universities, cyber espionage, and stealing Canadian intellectual property.  What more do we need to know before going to war?

In addition to the rape, murder, sterilization, forced labour, and mass imprisonment of Uyghurs, China is overthrowing democracy in Hong Kong, threatening Taiwan, and illegally claiming sovereignty over the South China Sea.  The Chinese are using dystopian levels of surveillance of their own citizens, especially ethnic minorities. And the Chinese are responsible for the coronavirus which has spread around the world and killed millions.  What more do we need to know before going to war?

The Devil's advocate

Dare we consider a Chinese perspective and response?  Despite claims of "free speech" and "transparency," it has become common practice to denigrate and dismiss anyone who challenges the common Canadian discourse on China (and/or Meng). 

Here, at least, it is possible to play "devil's advocate." 

A response to terrorism?

There is no genocide taking place in Xinjiang.  Every neutral observer who has visited the region comes to this same conclusion.  China faced a terrorist threat in the region and, in comparison to the USA with its invasions in Iraq and Afghanistan killing a million Muslims, has responded with moderation and efficiency in dealing with religious extremism. As reported by  Colin Clarke and Paul Rexton Kan in “Uighur Foreign Fighters: An Underexamined Jihadist Challenge,” The International Centre for Counter-Terrorism – The Hague 8, no. 5 (2017):

Uighurs, specifically individuals of Turkic descent from China’s northwest province of Xinjiang, have become a noticeable part of the constellation of globally active jihadist terror groups. Uighur jihadists first came to the world’s attention when the United States and its allies invaded Afghanistan in 2001. While continuing their cooperation with the Taliban under the banner of the East Turkestan Islamic Movement (ETIM), Uighur jihadists have now spread to Southeast Asia and the Middle East. ETIM’s members are part of the Turkestan Islamic Party fighting with the Al-Qaeda umbrella group in Syria, but other Uighurs have joined IS in Syria and Iraq, and still others have joined local terror groups in Indonesia. 

China:  A multi-ethnic nation

China is home to twenty-six different ethnic groups.  While Western democracies have paid lip service to individual human rights as they practiced "systemic racism" and "white supremacy," over the last 30 years, China has raised 800 million of its citizens out of dire poverty--many from the ethnic minorities it is now being accused of mistreating.  As reported by the Brookings Institute, China's policies with regard to the Uyghur began in the 1990s, but only since China's economic power began to rival that of the USA have we heard any claim of genocide.


Hong Kong is part of China--not a distant island

Hong Kong is literally a stone's throw from the mainland and has always been part of China.  As a condition of losing the Opium Wars, whereby the British Empire forced China to accept imports of opium, China accepted that Hong Kong would remain a British colony for 99 years.  That period of 99 years expired in 1997 at which time China reclaimed sovereignty over Hong Kong while allowing it to operate as a distinct, autonomous region.  China was prepared to allow this situation to continue until demonstrations, protests, and riots broke out in Hong Kong.  Even after the demonstrators' demands were met and the new extradition act repealed, riots continued with demands for full, Western-style democracy.  China's allowing Hong Kong to, once again, become a Western colony is about as likely as the USA returning Texas to Mexico.  Logically, the continuing protests can only be understood as part of an American plan to destabilize the country and eventually overthrow the regime in Beijing.  The fact that Hong Kong media tycoon Jimmy Lai, a leader of the pro-democracy demonstrations, had frequent meetings with Secretary of State, Mike Pompeo, confirms this interpretation.

Security and surveillance

Yes, China uses CCTV to guard the security and safety of its citizens, just as is done in London, England, and in every major city in the world these days.  Chinese computer surveillance systems have been developed but they are nowhere near as widespread or invasive as the Anglo-American ECHELON system designed to intercept private and commercial communication all over the world, or the PRISM surveillance system used by the US National Security Agency to spy on US citizens as well as people around the world.  Chinese data collection is modest in comparison to that of American technology companies like Facebook and Google.

Education in Xinjiang

China believes that education is the key to equality.  As outlined in MA Rong's research on "The development of minority education and the practice of bilingual education in Xinjiang Uyghur Autonomous Region," Uyghurs, traditionally, have the highest birth rate in China but  . . .

The development of an education system started late in Xinjiang, where there were only 525 college graduates and 593 high school graduates in 1957 (Xinjiang Uyghur Autonomous Region Bureau of Statistics, 2006, p.519). In 2005, however, college enrollment reached 59 000,

And university enrollment of Uyghur both throughout China and abroad has continued to grow. 

Is Paid labour "forced labour"?

Uyghur workers are paid for their labour wherever they work.  On some occasions, they are required to work outside their home regions where their labour is needed but are paid wages that exceed what they would earn at home. Throughout its history, China has called upon its citizens and leaders of the Communist Party (including Xi Jinping) to work as manual labourers in the fields as a demonstration of equality, discipline, and solidarity.

The Arrest of two Canadians

There are only two possible explanations for China's arrest of Michael Kovrig and Michael Spavor and in both cases, Canada is to blame.  Either they are guilty of espionage (presumably on behalf of Canada) as the Chinese courts have alleged or, as is generally assumed in Western media, they have been imprisoned in retaliation for Canada's arrest of Meng--in which case Canada is guilty of having thrown the first punch.

Where's the truth?

Here's a Chinese joke I encountered on Quora.  A young Chinaman is at customs about to enter the USA.  The customs agent asks him, "Why are you entering the USA?"  The young man replies, "I'm here to study the new brainwashing techniques."  The agent responds angrily, "We don't have brainwashing in the USA, we're not like China!"  "Yes, yes, that's it," the young man answers, "that's what I'm here to study."

"The truth," it is commonly observed, "is always the first casualty of war."  In the claims and counter-claims about China, I don't know where the truth lies, but the more I investigate, the more I find the inflated and inflammatory rhetoric of Western mass media to be uncontextualized, weakly supported by evidence, and reckless.

The "Thucydides trap" denied

In Chaos Under Heaven, Josh Rogin claims that the "Thucydides trap" "theory doesn’t fit the US-China relationship." As Rogin rightly points out, there are many variables in the lead-up to war.  One weakness of the theory, according to Rogin, is that "it assumes that China's rise is inevitable."  In 2015, China's rise might have been an assumption, but in 2021 it seems an undeniable fact.  By what measure would it be possible to conclude that China has not risen to the level of a world power?

Rogin concludes: "The Thucydides Trap concept is interesting, but we shouldn’t base our strategy on it."  "Interesting" is what we academics say when we want to say nothing. Given that the subtitle of Rogin's monograph is  "the Battle for the 21st Century," what is the logic of claiming that as we concoct a strategy (for what?) we should not consider the possibility of a war?  No-one in their right mind wants a war and yet they keep happening.  The whole point of the Thucydides argument (as I've quoted above) is that it is possible to avoid a war.  We can reduce the risk of war by cooling down the rhetoric, by being empirical, logical, accurate, precise, transparent, well-informed, and measured--all the things that we are not doing and being now.  Simply denying any possibility of a war does not reduce the possibility of it happening.

How a hot war begins

I was ten when President Kennedy announced that Soviet ships bringing missiles to Cuba would result in a nuclear war.  In our town, we had a special siren to announce that nuclear bombs had been launched.  I vividly recall the day the siren sounded.  No, it wasn't a nuclear war, but some idiot thought we should test the system without bothering to inform ten-year-olds like me. Cuba is 103 miles from the USA.  Taiwan is 81 miles from China. While the USA continues to impose sanctions on Cuba; goods, services, and people move freely between Taiwan and China.  According to the Taiwanese government website: "Today, Taiwan is one of the biggest investors in China." However, China is ready to go to war to prevent a US-backed Taiwan from declaring independence.  At least one observer has pointed out that "A US War with China over Taiwan Would Be Foolish and Costly"--not to mention potentially nuclear and absurd because Taiwan and China seem to be getting along fine if not for US intervention.

Preparations for war

With relatively little notice being taken in Western media, both China and the USA are preparing for war.  The focus of preparations is the South China Sea.  In theory, the battle is between China and the Philippines over conflicting claims of territorial waters. The Philippines, like Taiwan, Hong Kong, Australia and Canada, is a pawn in the conflict between the USA and China.

Adm. Phil Davidson, commander of US forces in the Indo-Pacific, warned that Chinese military developments looked to him like a nation planning for a war.

Davidson added that he believed China would attempt to forcibly reunify Taiwan "in the next six years." To guard against this possibility, Davidson asked Congress to provide a whopping $27 billion in additional funding over the current defense budget.

Ships and chips

It seems a historical motif that wars begin with the sinking of ships.  The sinking of the USSS Maine started the Spanish-American War, the sinking of the Lusitania brought the USA into WWI.  The Gulf of Tonkin incident led to a US escalation of the war in Vietnam. Everyone knows about the Japanese "surprise" attack on Pearl Harbour, but do people know why the Japanese attacked?  It wasn't a surprise.  In fact, it was quite predictable.  The USA had imposed sanctions on Japan, blocking the supply of oil while Japan was at war with China.  The Japanese had to destroy the blockade or lose the war with China.  These days, the equivalent of oil is computer chips, and the USA is doing all it can to block the supply of computer chips to China.  Taiwan is the world's largest manufacturer of computer chips.  The government of Taiwan is happy to continue with its "unofficial" independence and its sales of computer chips to China.  The USA seems to be the one more interested in Taiwan's "official" independence and in cutting off the supply of Taiwanese chips to Chinese companies.

More ships, more triggers

The USA has been conducting naval war games in the South China Sea displaying increases in firepower over the last three years.  In 2021, the USA began simulating Air-Force war games over Taiwan.

As if arresting Meng weren't enough, in the midst of ongoing tensions, the Canadian navy warship, HMS Calgary, crossed the South China Sea because it was the shortest route between A and B, and to show whose side we're on.

With the US canceling the nuclear treaty, Iran has begun to process high-grade uranium once again.  In the face of US sanctions, Iran has formed a closer alliance with China.  As reported in Haaretz, just as new treaty negotiations were getting underway (without US participation), Israeli forces attacked an Iranian cargo ship which had been anchored in the Red Sea for years.

Why blame Jody Wilson-Raybould?

Why blame Jody Wilson-Raybould?  Because I believe in the theory of chaos.  Each of us is the potential trigger of a future that we could not possibly imagine.  And history isn't fair.  From 1949, when the Communist Party of China took control, until 1970, China was treated as a global pariah by Western powers.  In 1973, Pierre Eliot Trudeau was the first Canadian Prime Minister and one of the first Western heads of state to visit China.  From that period until 2017, Canada's trade and diplomatic relations with China grew and improved steadily under both Conservative and Liberal governments, until the government of PM Justin Trudeau faced increasing criticism for becoming too friendly with China.  The Canadian arrest of Meng Wanzhou, Dec. 1, 2018, was an abrupt about-face from the last 48 years of our relations with China.  History will also mark that date as the day Canada was given the opportunity for another Lester B. Pearson moment, the opportunity to prove that Canada could be an independent peace-maker.  History will mark the day, in contrast to what might have been, as the moment when the channels for dialogue and negotiations between China and the West were broken, and Canada played a key role in the break.

To continue my Gavrilo Princip analogy, Richard Donoghue supplied the gun, but Jody Wilson-Raybould pulled the trigger.  Or, at least, she stood down from her responsibility as Minister of Justice, and let anonymous officials of the DOJ take responsibility for pulling the trigger.  In consequence, we face the absurdity of government leaders in two countries saving face with their constituencies by keeping a Chinese under house arrest in Canada and two Canadians in prison in China, the minor inconvenience of declining trade and economies, and 300,000 Canadians living in China put at risk while Chinese living in Canada face Anti-Asian hate crimes.  If the unimaginable worst-case scenario, which I have imagined here, happens, the question which will be asked:  "How did the Canadian Minister of Justice  allow it to happen over something so petty and remote as the allegation of a Chinese executive telling a fib to a Chinese banker in China?"

A Glimmer of hope

The Canadian justice bureaucracy continues to grind on in acquiescence to Richard Donoghue's dictates, meaning Meng and the two Michaels will, unless justice and common sense intervene, likely remain under arrest for another ten years. Richard Donoghue was replaced as Deputy Attorney General on January 20, 2021.  Donoghue has since disappeared from my internet radar.  However, his replacement, John Carlin, offered a glimmer of hope in the opening of his first public statement:

Before I begin, I’d like to address an important issue: the reports of horrific attacks on Asian Americans across the country.  I want to be clear here: No one in America should fear violence because of who they are of what they believe.  Period.  These types of attacks have no place in our society.  We will not tolerate any form of domestic terrorism or hate-based violent extremism, and we are committed to putting a stop to it.

We in the West need to be smart in our dealings with the superpower China has become.  Gross vilification of China and, "trickle-down," ignorant, myopic antagonism toward anyone who in Western eyes looks Asian is the opposite of smart.  

Addendum

"US Nuclear Fears Are Shifting From a Clear Russian Threat to a Murkier Chinese One"


Wednesday, 15 July 2020

"Judicial Independence" in Canadian Extradition Law

The Canadian Extradition Act

There is no "judicial independence" in Canadian extradition law.  Louise Arbour,  former UN High Commissioner for Human Rights, justice of the Supreme Court of Canada and Chief Prosecutor of the International Criminal Tribunals, has been trying to educate the Canadian public on this basic fact in Canadian law. The Canadian Extradition Act is available online and is clear (and I encourage you to click the hyperlink), in Canada, extradition is, ultimately, the responsibility of the executive branch of government (meaning the politicians we elect) not the judiciary.  Despite the obvious letter of the law, Prime Minister Justin Trudeau continues to stubbornly repeat the fallacy that "judicial independence" must be maintained in the Meng extradition trial. His use of the phrase "judicial independence" is proof that he has never looked at the Canadian Extradition Act.  Imagine: in a matter of minutes, anyone with an internet connection and basic reading skills can know more about Canadian extradition law than the Prime Minister of Canada.  Be one of those people.

I urge you to click on the link:  The Canadian Extradition Act.


The Definition of absurd

The definition of absurd is "wildly irrational, illogical and inappropriate."  I bother to define "absurd" because the word can sometimes imply ridiculous, mocking, even comic.  But in this case, the issues are deadly serious, especially for Michael Korvik and Michael Spivak who could spend years in a Chinese prison  (Canadian extradition cases have been known to take ten years) while the Canadian government dithers and does nothing.


The Most basic rule of logic

The most basic rule of logic is that if your premise is wrong, whatever conclusions or arguments follow from the premise will also be wrong.  For over 18 months, Canada's political leadership and virtually the entirety of its fourth estate have adopted a false premise summed up in the expression "judicial independence."  By adopting this false premise, Canadian politicians, the media, and numerous public figures have unleashed a litany of absurdities, non-sequiturs, and obfuscations which can only lead to delays and damage to Canada and Canadians.  Consider some of the claims you have, no doubt, already heard.


We are abiding by Canadian law

 If you dared to click the link to the Canadian Extradition Act, you know this goes beyond being illogical, it is an outright lie.  The only way to claim that Canada is being "law abiding" is to ignore the law, the Canadian Extradition Act, which we are supposedly abiding by.


We had no choice: Canada is respecting its extradition treaty obligations

How many times have you heard these claims?  The word "obligations" is more than misleading; it is simply wrong.  Extradition treaties do not create the obligation for Canada to arrest anyone, and the Treaty on Extradition Between the Government of Canada and the Government of the United States of America is no exception.  The treaty lays out the circumstances and a list of the 30 crimes for which Canada will consider the American "request" that a person be extradited.  You can do a word search of the Treaty (click edit/find in your browser, then type in the word oblige and any of its cognates). The word "oblige" or its cognates does not appear a single time in the Treaty.  The word "request" and its various forms appear . . . a lot.  (I stopped counting after I had found the word used 50 times.)  The Public Prosecutor Service of Canada is explicit that "Extradition treaties do not themselves create an obligation or a power to arrest in Canada."  Still, Canadian politicians throw up their hands saying "we had no choice" and Canadian journalists piously repeat the falsehood.

Trump made it political

Invoking the name "Donald Trump" has become a means of announcing that the universe is absurd and, to quote Becket's Waiting for Godot, "there is nothing to be done."  Blaming Trump means no-one feels responsible to do anything.  Of course, Trump's public announcement that he would use Meng as a bargaining chip with China was immediate grounds for dismissal of the extradition request.  But, guess what, only the Minister of Justice can take that step.

One school of thought is that arresting Meng on December 1, 2018, the same day Trump was having a one-on-one meeting with China's President Xi was a deliberate attempt to undermine the American President orchestrated by his national security advisor John Bolton.  (If you click on this link to the Guardian article from 6 Dec 2018, you will see Bolton quoted as saying he didn't know if Trump had been informed of the Meng arrest.  My guess:  if his national security advisor didn't tell him, Trump probably didn't know.  Also, in the article, Bolton makes it clear that Meng was arrested because of NSA concerns about Huawei, not because she had committed bank fraud.)

"Trump made it political" clouds the fact that extradition is, by law, political in Canada.  Justin Trudeau made the case impossibly "political" when he dismissed Canada's ambassador to China simply for saying that Meng had a good case against extradition.  How can David Lametti, the Minister of Justice, do his job and release Meng after Justin Trudeau and Chrystia Freeland have repeated a hundred times over in the last 18 months that extradition in Canada must be done without political interference?  Has anyone heard from our Minister of Justice recently?  Robert Fife, Globe and Mail Bureau Chief, described Minister of Justice, David Lametti, as "becoming a joke," and "every time they let him out he says something stupid."  On Feb. 7, 2019, three weeks after he had been appointed Minister of Justice, The Star reported:


Justice Minister David Lametti says foreign affairs will be a factor if and when it comes time for him to make what he acknowledges is a political decision whether to extradite Huawei executive Meng Wanzhou [ . . .].
 I haven't heard anything from the Minister of Justice since.  Have you?


Canada is being bullied; we need to get tough with China

If you are wondering by whom Canada is being bullied, you need look no further than Adrienne Arsenault's interview with former National Security Advisor John Bolton.  

When asked  about what the USA was doing about the imprisonment of Canadians Kovrig and Spavor, John Bolton replied:  "it has been spoken about publicly in the administration."  This is how the USA is getting tough with China.

Canada is being played by the USA and being left to its own devices to deal with China.  Bolton's response to Canada's dilemma:  "If you want to leave NATO, if you want to get rid of our protection militarily, please go ahead and do it.  If that's what you want.  Canada is free to do it."

When Arsenault asked, "How does Canada get its Canadians home from China at this point?"

Bolton's response:  "Look, I think we all want to get them home as soon as possible.  America has had its share of hostages around the world. If you don't like it, Ma'am, you're free to go ally with China.  If you think that's what your country wants to do.  Think about that long and hard."


There's a difference between China imprisoning two Canadians for no reason and Canada's arresting Meng on legal grounds

Yes, there is a difference.  It is a difference of degree.  It only holds as a difference of kind, if Canada's grounds for holding Meng are legal according to Canadian law.  Back to the Canadian Extradition Act and the fact that the Minister of Justice and only the Minister of Justice (not a judge) is tasked with looking at all the circumstances and deciding if the request is just and justifiable.  Only the Minister can consider if Richard Donaghue's warrant is a conflict of interest.  Only the Minister can determine if nationality, ethnicity, economics, or politics play a part in and thereby dismiss the extradition request.  Only the Minister can look at the entire situation and consider if Meng will, in fact, be tried and sentenced to at least a year in prison as required by the Treaty, or if the end result will likely be a fine or some kind of negotiation--which would be grounds for dismissing the request.  Only the Minister can look at the entire situation and ask:  "Has anyone ever done jail time for the kind of thing that Meng is being accused of?" Everywhere the Minister of Justice looks, he is likely to see a reason to dismiss the extradition request.  The Canadian response:  "judicial independence" as if the Minister of Justice is not allowed to act.  Have I mentioned that Canadians need to study the Canadian Extradition Act?


We can't release Meng because the Chinese have taken two Canadians hostage

Having ignored the letter of Canadian law for 18 months, we now find ourselves facing the absurd argument that we cannot release Meng because the Chinese have imprisoned two Canadians and acquiescence would encourage future hostage diplomacy.  Does anyone really believe that Canada is in a position to give China lessons on international diplomacy?  That anything Canada does will change Chinese behaviour on the international stage?

Arresting two Canadians in China, as I pointed out in December, 2018, has made the optics of releasing Meng more difficult for Canada.  At the time, the common observation was that the arrests of Kovrig and Spavor were for local consumption in China; that is, the government had to show that they were doing something about the arrest of Meng.  The need for two governments to save face with their constituencies has created this absurd standoff.  Neither government has solid legal grounds for their actions but before any change can take place, one of these governments has to admit the fact.

A Majority of Canadians oppose a swap of Meng for the Michaels

The UBC survey done last October concluded that 39% of Canadians felt arresting Meng was a mistake and 35% feel she should be released before the judicial process has concluded.  More recently:


the latest study from the non-profit Angus Reid Institute finds Canadians supportive of the federal government’s position of letting Meng’s extradition case play out in the courts. Seven-in-ten (72%) feel this way, while a minority (28%) say that they would rather the government negotiate a way to exchange Meng for Canadians Kovrig and Spavor.

What does this latest poll prove?  To fully answer the question, you have to look at the question that Angus Reid asked, and the answers that respondents were allowed to give.  This is what you get:




In other words, if you are forced to accept the false premise that extradition in Canada is an "independent court process" do you follow the law, or break the law and do something else? So yes, Canadians think of themselves as law-abiding, which is easy to do if you ignore the law . . . the Canadian Extradition Act.



Now What?

David Akin of Global News has argued that it's too soon for the government to intervene in the Meng extradition. According to Akin, the Minister can only act at the end of the judicial process (in 8 to 10 years from now?).  Commenting on CBC News last  week, Susan Riley, said it was "too late for the government to intervene."  Of course, she has a point.  After 18 months of repeated, spurious claims that the government cannot interfere, how will the government explain its actions when it is eventually required to follow the law and for the Minister of Justice to make his decision?

There is only one way, that I can see, to escape the perfidy and absurdity.  A lot of Canadians will have to browse the Canadian Extradition Act. Is there any way that is ever going to happen?  Not likely.  Then again, what if you did?  And suggested the same to a few of your friends?

Thursday, 25 June 2020

How Did Canada Lose to Norway and Ireland in Its Campaign for a UN Security Council Seat?

The Basics:  

  • The United Nations was formed in 1945, at the end of World War II.  There were 51 member countries.  Harry S. Truman was President of the USA and the UN's home was established in New York City.
  • The goal of the United Nations is world peace and security.
  • The Security Council is the power center of the UN.  It has five permanent members, the "big" winners of WWII:  the USA, France, the UK, Russia, and China.
  • On a rotational basis, other countries are elected by all 193 members of the UN General Assembly to occupy temporary, 2-year positions in the Security Council.
  • There are currently 10 temporary (non-permanent, 2-year) positions in the Security Council. The permanent members have remained the same since 1945.
  • The non-permanent positions are elected on a geographical basis, so Canada was competing against Ireland and Norway in what is known as the "Weog block" (Western Europe and Others).
  • In the 2020, three-country competition for two Security Council seats, Canada came in third behind Norway and Ireland.


Why did Canada lose?  The Said and the unsaid.

Here is a list of reasons I have surmised ("the unsaid") and I have read ("the said" which someone else has surmised):
  1.  Canada is a strong supporter of Israel.  According to Wikipedia, citing a CBC commentary by Evan Dyer, Canada's "consistent voting record in support of Israel" was an obstacle to its election.
  2. Over time, Canada has had a Security Council Seat for twelve years.  In other words, Canada has won this election process six times.  It was someone else's turn.
  3. Norway spent 2.8 million dollars campaigning for a seat; Canada only spent 1.74 million.  (Who knew there were campaigns for the seats?  Didn't we just put SNC-Lavalin on trial for paying bribes to foreign officials?)
  4. As part of the campaigning, Canada gave out free tickets to a Celine Dion concert.  Ireland gave out free U2 concert tickets.  (Turns out Bono is more popular in the UN than Celine.)
  5. Gender equity.  (This so ironic, it's almost funny.)  In Canada, we might think of our Prime Minister as the Poster Boy for gender equity.  The Security Council, as it turns out, is also very interested in gender equity.  The Norwegian Ambassador to the UN and the Irish Ambassador to the UN are both women.  Their election added two more women to the Security Council.   Canada's Ambassador to the UN and our candidate for the Security Council was Mark-André Blanchard.
  6. It's a fair guess that China did not vote for Canada.  Nor would any country under Chinese influence and, if the rumours are even half true, that would be a lot of votes.  After the vote, Norway's Prime Minister expressed the intention "to remain on good terms with China, Russia, and the United States."  Something Canada seems to have trouble doing.
  7. No-one I have read is saying so but I think it is a fair bet that the Trump White House would be unlikely to endorse a Canadian presence on the Security Council.  Trump's animosity toward Trudeau is well documented.  I can recall at least two incidents in which Trump described Trudeau as "two-faced" or words to that effect--The G7 and Davos.
  8. Why vote for the American lapdog?  Despite the exchange of insults between the President and the Prime Minister, Canada is perceived as being incapable of opposing or unwilling to oppose US hegemony.   The campaign for a Security Council seat has been going on at the same time as Canada has been holding Meng, the Huawei CFO, under house arrest to honour a US extradition request.  The arrest has been counter to Canadian interests while it serves American corporate and trade interests.  Historically, Canada has been elected to the Security Council once every 10 years under both Conservative and Liberal governments.  It has now been 20 years since Canada last held a seat.  Canada's willingness to sacrifice its own interests in order to accommodate an American "request" leads to the conclusion that electing Canada would simply be giving the USA another voice at Security Council meetings.

Does it matter?

According to Andrew Scheer, who seems to be in permanent bitch mode these days, the campaign was Justin Trudeau's "personal vanity project."  However, when the Harper/Scheer Conservatives failed to win a Security Council seat in 2010 "foreign affairs minister John Baird attributed the failure to win a seat to principled positions taken by Canada on certain international issues."  

I have gone looking for answers to the question "What are the benefits of a temporary seat on the Security Council?" and the answers have been neither tangible nor convincing.  "Having a seat at the table" is an interesting synecdoche but what does it really mean?  It's prestigious?  How does that prestige play out to be of any real benefit to Canada?

According to the rules of the Security Council, any one of the five permanent members can veto any proposal presented.  Hypothetically, if Canada were a member and presented an idea, all five of China, Russia, France, the UK, and the USA would have to agree before there could be any further discussion.  If all five permanent members wanted an idea to be discussed, they certainly wouldn't need Canada to propose it.  Or is the Security Council really about backroom deals, corridor conversations, and whisper campaigns?  If so, do they really need to be Security Council members in order for Ambassador A to lean over to Ambassador B and say, "Hey, why don't you let our citizens out of jail, and maybe we can sign a trade deal!"


Is the UN a dysfunctional bureaucracy?

The theoretical goals of the UN--"world peace and security"--could not be more desirable.  In practice, it appears to have fallen prey to the syndrome which plagues so many institutions, (governments, political parties, universities, security and police forces, even non-profit organizations and charities): a preoccupation with its own bureaucratic survival over the underlying raison d'être for which it exists.

Seventy-five years after it was first formed, Professor of International Relations, Jean-François Thibault, asks, "is the Security Council still relevant in its current form?"  Thibault is "not optimistic." We can only hope that the organization reinvigorates the goals to which it aspires before it expires.


Addendum

An astute reader of this blog asked me if there has ever been a case of the non-permanent members of the Security Council affecting the outcome of voting on a particular resolution.  I have browsed 500 (of the 2500 available) examples of Security Council votes.  In these 500 cases, there was not a single example of one of the 15 members of the Security Council voting against a resolution.  In a handful of cases, there were two or three abstentions.

Tuesday, 16 July 2019

Extradition from Canada to the USA: Why Meng's Chances of a Favourable Canadian Verdict Are Slim

Extradition by the numbers

This Extradition Fact Sheet from a Government of Canada website provides statistics on Canada-to-the-USA extradition cases over a ten year period from 2008 to 2018.  As you can see, once a  case is before a Canadian judge (as Meng's is now) only 8 times (total number of discharges/refusals in 10 years) of 798 US extradition requests has the court ruled in favour of the individual resisting extradition--roughly 1% of the time.


Fiscal YearTable note *Total number of requestsArrestsATP’s IssuedOrder of Committals Total number of discharges/ refusalsWithdrawalsTotal number of people surrendered
2008-2009978467400161
2009-20101186563301349
2010-20111327158161661
2011-20121179372310281
2012-20131019566343665
2013-2014534943341758
2014-2015475338291552
2015-2016443430290241
2016-2017403532211649
2017-2018494738230235
TOTAL798626507287840552
 A CBC News report on the "High Rate of Canadian Extraditions" described the need for reform.  As Robert Currie, a professor of law at Dalhousie University, described the Canadian system, "Once you are sought for extradition, your goose is pretty much cooked."

Best chance of avoiding extradition before Minister issues Authority to Proceed

In the same table above, when we compare the "number of requests" to "ATPs issued" (Authority to Proceed), we discover that in 65% of cases an Authority to Proceed was granted.  In other words for a person facing extradition, the best chance of avoiding extradition (35%) comes before an ATP has been issued.  Unfortunately for Meng, On March 1, 2019, the Department of Justice issued a press release announcing:

Today, Department of Justice Canada officials issued an Authority to Proceed, formally commencing an extradition process in the case of Ms. Meng Wanzhou. 
The decision follows a thorough and diligent review of the evidence in this case. The Department is satisfied that the requirements set out by the Extradition Act for the issuance of an Authority to Proceed have been met and there is sufficient evidence to be put before an extradition judge for decision.

 

Who issues Authority to Proceed?  Justice Canada officials or the Minister?

While this press release makes anonymous "Department of Justice Canada officials" responsible for the issue of an Authority to Proceed, elsewhere the Ministry website seems clear that "The Minister of Justice must determine whether to authorize the commencement of extradition proceedings in the Canadian courts by issuing an 'Authority to Proceed'."  In other words, from December 1, 2018 to March 1, 2019, the Minister of Justice, in consultation with the International Assistance Group of the Canadian Department of Justice, had the option not to issue an "Authority to Proceed" and release Meng from house arrest.

Who issues provisional arrest warrant?  A judge or the Minister?

On December 12, 2018, Jody Wilson-Raybould issued a statement saying:  “As the Minister of Justice, I take my extradition responsibilities and obligations very seriously." In that statement Wilson-Raybould claims:
Ms. Meng was arrested pursuant to a provisional arrest warrant issued by a judge of the Supreme Court of British Columbia a procedure which is contemplated in both the Extradition Act and the Treaty on Extradition between Canada and the United States in circumstances where urgency has been established. The decision to seek a provisional arrest warrant from the court is made by Department of Justice officials without any political interference or direction.
However, what the Extradition Act says is:
The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant 
And consequently:
A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of a person
How could Wilson-Raybould claim that "a provisional arrest warrant was issued by a judge" in accordance with the Extradition Act, when the Act specifies that she as Minister of Justice was responsible for issue of the warrant?  As explained on the Public Prosecution Service of Canada website:
Extradition treaties do not themselves create an obligation or a power to arrest in Canada. They merely define the basis on which provisional arrest may be requested. The judicial power to order provisional arrest arises under section 13 of the Extradition Act, once the Minister of Justice approves the request for provisional arrest (section 12).
How could Wilson-Raybould claim that the decision was made "without political interference or direction" when the Act and the Public Prosecution Service confirm that "the Minister of Justice approves the request"?

In Canada EXTRADITION IS POLITICAL

I must admit I have started yelling that in Canada EXTRADITION IS POLITICAL.  (By the way, kudos to David Akin for sharing my rebuttal to his ANALYSIS on his Twitter feed.  What better way to contradict my claim that journalists were censuring the discussion than to forward a link to my post.  As of today, I can report that the post has been viewed 71 times.)

I have gone looking for an answer to the question:  When the Extradition Act says "the Minister" does the text really mean anonymous "Officials of the Department of Justice"?  I have not found an answer that I can quote here, other than the glossary of definitions at the beginning of the Act which states: "Minister means the Minister of Justice."  What I have found are repeated confirmations that in Canada extradition is political.

Justice Minister David Lametti has already confirmed, in an interview with the Star that
foreign affairs will be a factor if and when it comes time for him to make what he acknowledges is a political decision whether to extradite Huawei executive Meng Wanzhou to the United States over China’s furious objections.
David Akin also confirms that
[ . . .] there will be an opportunity for Prime Minister Justin Trudeau, through his justice minister, David Lametti, to intervene and, if they so choose, to block the extradition.But that opportunity comes much, much later, at the very end of the extradition proceeding.

 

The Shift from "it's not political" to "it's not political yet"

 The argument has shifted from "it's not political" to "it's not political yet." The problems with the new argument are numerous.  In the first place, someone should tell Minister of External Affairs, Chrystia Freeland, so she can stifle her strident claims that “When it comes to Ms Meng there has been no political interference ... and that is the right way for extradition requests to proceed.”

The second problem with the "let's do nothing now" approach, is that the extradition hearings in BC Supreme Court are not scheduled to start until January 2020.  The case will go on for at least two years, Canadians will languish in a Chinese prison, Canadian businesses and trade will suffer, and Canadian trade and relations with China may never fully recover.  As I commented at the beginning of the year: "if the naivety and Dudly-Do-Rightism of Canadian leadership allow the extradition hearings and detainment of Meng to continue for years, then the corporate objective of slowing down the competition will have been achieved--and the Government of Canada will have colluded in that corrupt undertaking."

The third problem with "let's wait" is that there is no legal, moral or practical reason to wait.  The Extradition Act states: "The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention."  "At any time" includes right now.  If the Minister considers "all the relevant circumstances," as indicated in the law, the grounds for withdrawing the Authority to Proceed are numerous:  the original warrant is suspect, the request political, contrary to the Canadian Bill of Rights regarding nationality and ethnicity, no individual has been convicted of a crime in the USA for the behaviour of which Meng is accused (business in Iran), such behaviour is definitely not a crime in Canada, and, for obvious, practical reasons she will never be imprisoned in the USA as required by the Act and the Treaty on Extradition Between the Government of Canada and the Government of the United States of America.

The fourth problem with the passive, "wait and see," "let the judge decide" attitudes of our political leadership is they grossly overestimate the power of judges in extradition cases.  As the Supreme Court of Canada Judgement outlines in McVey versus the USA, "the role of the extradition judge is limited but important:  he or she must determine whether a prima facie case exists that the conduct of the fugitive constitutes an 'extradition crime' according to Canadian law."  In this "Judgement," the Justices make the point 15 separate times that the extradition judge has "limited" functions and "modest" powers.

The solution is political, but Canadian politicians play Pontius Pilat

The point here is that unlike the Minister of Justice who is tasked with considering "all the circumstances," the extradition judge is only tasked with considering whether or not what Meng has done looks, at first glance, like bank fraud--the extraditable offense of which she is accused.  However, the Supreme Court Justices have indicated that the extradition judge cannot investigate or consider American law.  Can she,  for example, consider the fact that no individual has ever been convicted of a crime in the USA for transgressing the Iran sanctions?  It appears not.  This responsibility falls to the Minister of Justice.  The historical statistics indicate that Meng has a 99% chance of being extradited.  This is so because of the limitations of an extradition hearing and limited powers of an extradition judge, and the reluctance of the Minister of Justice to act at the end of extradition hearings.

Supreme Court of Canada confirms Minister, not a judge, has the power 

The Supreme Court Justices make the point repeatedly that the extradition judge's powers are limited, but the Minister of Justice's powers are broad:
When a request is made, the political authorities in the requested state will examine the material to see that the request complies with these terms and conditions.  The treaties also make provision for the requesting state to supply certain material whereby the requested state can determine the validity of the request and its compliance with the terms and conditions of the treaty (see Art. 9 of the treaty here (Can. T.S. 1976 No. 3)), and it is reasonable that these are the materials to be looked at in determining the issue.  In essence, the treaty obligations are of a political character to be dealt with in the absence of statute by the political authorities.
          [ . . . .]
Nowhere is the duty to consider the foreign law assigned to the extradition judge.  This, as I mentioned, is a task for the political authorities at common law, now assigned by statute to the Minister of Justice.
          [ . . . .]
In Canada, the procedure, we saw, is more fluid, the case frequently coming before the extradition judge before the formal requisition has been made.  But the substance is the same; the Minister of Justice may at any time refuse to surrender and discharge the fugitive (s. 22 of the Act).
           [ . . . .]
the Extradition Act, which we saw only requires that there be prima facie evidence of an act that constitutes a crime listed in the treaty according to the law of Canada.  In fact, the Act does not deal with proof of foreign law at all.  That, as I said, is a matter for the executive.  (The executive, in Canada, means political representatives of the Queen, in particular the Prime Minister. See https://www.lawnow.org/democratic-governance-the-constitution-and-canadas-branches-of-government/).
           [ . . . .]
[ . . .] what is really important is that a person should not be surrendered to another country for conduct that is not considered a serious crime in the requested country.  
Canada and Canadians are facing a serious situation which requires political action.  We have to stop letting our politicians off the hook with delaying, "it's not political" arguments and require them to perform the duties for which they were elected.


Is "Typhoid Mary" Back Among Us?

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