Suddenly announced trials for Two Michaels a due-process contrast to Meng Wanzhou extradition

Meng has had a team of top-flight lawyers and is living relatively free on bail. Spavor and Kovrig, by contrast, have been held virtually incommunicado

When Canada and other countries issued a declaration last month decrying the use of “arbitrary detention” of foreign citizens, China responded angrily.

If the statement implied Beijing’s imprisonment of Canadians Michael Kovrig and Michael Spavor was arbitrary, that would be like “a thief shouting to catch a thief,’ ” scoffed the Chinese embassy in Ottawa.

“How hypocritical and despicable!”

The diplomats pointed to Canada’s own arrest in Vancouver of Huawei CFO Meng Wanzhou on a U.S. extradition request.

But with Spavor suddenly slated to go on trial Friday for alleged national security offences and Kovrig on Monday, the comparison between the cases would seem to hold little water — at least in terms of due process and legal rights.

Meng was arrested under a longstanding treaty between Canada and the U.S., has had a team of top-flight lawyers pursue numerous challenges of the action and is living relatively free on bail in a $13-million mansion as the case winds its way through the B.C. courts.

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Spavor and Kovrig, by contrast, were arrested on nebulous charges, have been held virtually incommunicado — at times under coercive conditions — and this week were assigned trials with little warning. It’s widely believed they were taken in as a tit-for-tat response to the Huawei executive’s arrest.

Authorities have told Global Affairs Canada that the hearings will not be open to the public or the media. And, despite several requests, they have yet to indicate that even Canadian embassy officials can attend, Christelle Chartrand, a Global Affairs spokeswoman, said Thursday.

“We remain deeply troubled by the lack of transparency surrounding these proceedings,” she said.

It’s unclear how much notice the pair were given of their hearing dates, but Chinese law doesn’t require a lot.

Defendants are supposed to be provided the particulars of the indictment against them and prosecution evidence at least 10 days before trial, and be notified of the actual trial date no less than three days ahead of time, said Donald Clarke, a professor at George Washington University and expert on Chinese law.

“Even if they have the full 10 days, clearly that’s very little time to prepare,” said Clarke. “It’s really hard to imagine how an effective defence, which was responsive to the specific charges … could be put together.”

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But in the end, whether they have time to make ready for their hearings or not is almost irrelevant, he said, as the outcome is a foregone conclusion. In well over 99 per cent of Chinese trials, the verdict is guilty.

Meng’s case has shown that the Canadian extradition process can be drawn-out and complex, but also transparent and subject to extensive legal scrutiny. She was charged by American prosecutors with fraud for allegedly misleading the bank HSBC about Huawei’s ties to a company doing business in Iran, contrary to U.S. sanctions.

The first substantive part of the case involved arguments over the “double-criminality” rule — whether the accusations would, as required, comprise offences in both countries. A judge decided that it did, in a lengthy judgement last spring.

A police vehicle believed to be carrying Michael Spavor, a Canadian detained by China on espionage charges, arrives at Intermediate People’s Court, where he is expected to stand trial, in Dandong, China, March 19, 2021. Photo by Carlos Garcia/Reuters

Meng’s actual hearing on “committal” — whether to approve the extradition — is scheduled for May. But this month her lawyers are arguing preliminary motions, such as whether the executive’s Charter rights were infringed in the way she was taken into custody at Vancouver airport in 2018.

If and when the judge rules on committal, the losing side can appeal, potentially as far as to the Supreme Court of Canada. Even once that process is exhausted, the final “decision to surrender” is up to the federal minister of justice. His or her decision can also be challenged in court.

That said, there is controversy around the system, mostly in relation to the criteria judges are mandated to use for ruling on extradition. They simply have to determine that there is some evidence on which the detainee could be committed to trial in Canada, not necessarily strong evidence. Critics point to the case of Hassan Diab, extradited to France in 2011 on allegedly shaky grounds, then released after 38 months in solitary confinement when a French judge dropped the charges.
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Of the people arrested on U.S. extradition requests from 2008 to 2018, 83 per cent were dispatched south of the border, according to Statistics Canada.

Still, the rights given criminal defendants in China seem to pale in comparison.

About 99.96 per cent of criminal defendants are now convicted, even as the number of cases has more than doubled to 1.6 million since 2000, according to a report issued Thursday by Safeguard Defenders, a Spanish-based human-rights group.

“What that means is, if anywhere along the line someone thinks the defendant should not be convicted, the case never gets to trial in the first place,” said Clarke. “Acquittal is going to be very embarrassing and make someone look bad.”

But he said there is a better Canadian comparison to make with the two Michaels’ cases than Meng’s extradition.

That would be all the instances that have not occurred in Canada of innocent Chinese citizens being detained as revenge, said the law professor.

“Here we have China, a great power, a member of the United Nations security council, behaving in this gangsterish manner and in a way that is completely unthinkable for most other advanced countries.”

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