ANALYSIS: Trudeau cannot just order Huawei’s Meng Wanzhou to go free — or can he?

Click to play video: 'New arguments in Meng Wanzhou extradition battle'
New arguments in Meng Wanzhou extradition battle
WATCH: Lawyers were in court Thursday arguing how the extradition trial of Huawei CFO Meng Wanzhou will proceed – Jun 6, 2019

Former prime minister Jean Chretien and one of his former ministers, John McCallum, have been publicly and privately musing that Canada should just start patching things up with China by releasing Meng Wanzhou.

“I think it’s shocking,” said University of Ottawa law professor Amir Attaran. “I think that’s absolutely inappropriate. If they want to make those comments, run for office again.”

Meng, of course, is the chief financial officer of Chinese tech giant Huawei and was arrested in Canada last December on behalf of the United States. That arrest has sparked a furious backlash from China. In addition to detaining two Canadians in the country, China has banned Canadian canola, soy and, most recently, meat — exports worth billions of dollars a year to Canadian businesses.

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Why suffer all that pain? Why not just send Meng back to China?

But we cannot. At least, not right now. Because in Canada, like most western democracies and not — this cannot be stressed enough — like China, politicians cannot simply phone up a judge and order that an accused person be set free.

And that’s where Meng’s case is right now: before Associate Chief Justice Heather Holmes of the British Columbia Supreme Court.

If Holmes does eventually rule that Canada should honour the extradition request by the United States — which has charged Meng with fraud in association with alleged violations of Huawei on American sanctions on trading with Iran — and surrender her to American authorities, 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.

WATCH: Global News coverage of Meng Wanzhou’s extradition case

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“This is an independent process that can’t allow for political interference of any kind,” said Irwin Cotler, the noted human rights scholar who was once Chretien’s justice minister and attorney general.

“At this stage in the process, we have to abide by all the various aspects surrounding the rule of law, which means abide by the bilateral extradition treaty.”

Meng has availed herself of her right to bail — she is living in a comfortable house in Vancouver under court-ordered monitoring and supervision while Canadians Michael Kovrig and Michael Spavor languish in a Chinese jail  — and has availed herself of the right to legal counsel to represent her in a Canadian court.

It should be noted that her legal counsel has taken note of Chretien’s musings and put those musings before the court for the judge to consider as yet more evidence that Meng’s arrest is about politics, not justice.

The first and best evidence of that, so far as Meng’s team is concerned, has been tweets issued from the smartphone of U.S. President Donald Trump who, in suggesting he might drop the charges against Meng if the United States gets a good trade deal with China, has all but confirmed that Meng’s arrest is a fungible item to be cashed in at the White House’s whim.

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Cotler is sceptical that Holmes would put much weight on this argument.

“Even after Trump made those statements, his own justice department effectively responded by saying [to Holmes]: ‘This is not something the president can do.’ It’s a legal process that has to be allowed to act itself out independently pursuant to treaty obligations and the like,” said Cotler.

Attaran, the law professor, agrees with Cotler and thinks ex-politicians like Chretien and McCallum should clam up while the matter is before the court.

And yet, Attaran can see a way in which a Canadian justice minister could try right now to do his best to see that she wins.

“If I were David Lametti, I would be saying [to the lawyers representing Canada at the hearing]: ‘I’m instructing you to go to court and concede the point that there has been troubling statements by the president that call into question whether this extradition is purely for the stated criminal purpose … or if it is for a political purpose emanating from the White House,’” said Attaran.
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“Certainly, what Canada’s lawyers could do — and should do if they want to try to put this behind them — is to say: ‘We consider Trump’s comments to be inappropriate and we agree with Meng’s lawyers that there could be a political purpose to this extradition.'”

WATCH: International response to Meng Wanzhou extradition proceedings

But Attaran — a keen observer of politics as well as law — says such an intervention or direction by Lametti right now would be political poison to the Trudeau government, already laid low by allegations of political interference in a judicial process in the SNC-Lavalin matter.

Moreover, any Canadian government that instructed its lawyers to team up with Meng against U.S. Department of Justice lawyers in front of a Canadian judge is going to have some serious explaining to do about why Canada caved to the Chinese bully and simultaneously betrayed its best friend, the United States.

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That’s why Trudeau and Foreign Affairs Minister Chrystia Freeland are right to reject any hint of considering an intervention in the Meng case. Canada is a nation of laws with a fully independent judiciary to interpret and enforce those laws. Full stop.

And the nations of the world — Chretien and McCallum, notwithstanding — can take inspiration and comfort from Canada’s unwavering insistence on the rule of law.

“With Canada doing that, it helps protect other [countries] who might be in a situation where they might be bullied or asked to do some untoward thing,” said Cotler.

“It’s demonstrating we are respecting a rules-based, democratic international legal order. And that we’ll abide by that with all the things that that mandates.”

David Akin is the chief political correspondent for Global News.

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