VANCOUVER—The fate of two Canadian men facing trial in China is now, for all intents and purposes, up to U.S. President Joe Biden to decide, experts say.
China’s announcement this week that it will have snap trials for Michael Kovrig and Michael Spavor, imprisoned since December 2018, is a political move to pressure Washington to withdraw its extradition request for Huawei executive Meng Wanzhou.
Kovrig, a Canadian diplomat on leave, and Spavor, an entrepreneur, were arrested in China days after Meng was detained in Vancouver.
The U.S. Justice Department wants her extradited to face fraud charges related to her company’s dealings with Iran.
In a tactic that observers dubbed “hostage-taking diplomacy,” Beijing has made it clear that they will not release the men unless Meng walks free.
As extradition hearings in Canada could take years, China is expected to pass guilty verdicts on the men to pressure the U.S. to drop Meng’s case immediately, lawyers say. The Chinese executive comes from a powerhouse family in China with influence in both the political and business world, and her arrest was seen by Beijing as a grave insult.
The cases have coloured all interactions between the countries for the past two years, with tensions ratcheting up in recent years over abuses in Xinjiang, a security law in Hong Kong affecting the freedoms of Canadians and a trade war between the U.S. and China.
Here’s what experts say to expect in coming days as years of clashes come to a head:
What are Spavor and Kovrig accused of doing, and why does Ottawa call their arrests “arbitrary?”
Both men have spent more than 830 days in solitary confinement with little access to the outside world.
Chinese authorities allege the two men were working together, and accuse Kovrig of spying for state secrets and intelligence, and Spavor of spying for a foreign entity and illegally providing state secrets. Officials did not specify what entity the two men were allegedly spying for.
“Their charges are completely bogus,” says Clive Ansley, retired from 36 years of legal practice in both Canada and China, who now works as a consultant on legal issues related to China.
He said Canada had little choice but to follow legal processes for Meng, as releasing her would amount to a “capitulation” and signal to Beijing that they could arrest other citizens in the future to get what they want.
Global Affairs Minister Marc Garneau said Wednesday that Canada is trying to secure access to the trials.
“We believe these detentions are arbitrary, and remain deeply troubled by the lack of transparency surrounding these proceedings,” Garneau said in a statement.
How will the trials be conducted and what are the likely results?
Spavor’s trial on Friday will take place in the city of Dandong in northeastern China and the trial of Kovrig will start Monday in Beijing. Their trials are expected to be brief.
China has denied Kovrig and Spavor access to lawyers since their arrests. It’s possible that authorities may assign lawyers to represent the men in court, but doing so would be purely for show, as results of high-profile trials in China are pre-determined.
The conviction rate in China is 99.7 per cent, according to China’s Supreme People’s Court.
“We refer to China as the party-state. Because it’s the Chinese Communist Party that stands above every state institution, and certainly stands above the courts,” Ansley said.
“For big political cases, they want to have a show trial, where spectators are specially selected to attend to make it seem as if the trial is fair and open to the public. That is likely what we will see,” he told the Star.
Ansley said it is unlikely that Spavor and Kovrig would be coerced to confess, but he notes that forced confessions through torture are common in the Chinese justice system.
What does Beijing want the US or Canadian government to do?
On Thursday, high-level officials from the United States and China were meeting in Alaska for the first time since the Biden administration took over.
Former Canadian ambassador to China Guy Saint-Jacques says the timing of the trials to coincide with the two-day meeting is no coincidence. Beijing is focusing on pressuring Washington, and not Canada.
“China is playing hardball to show they won’t be pushed around, because they want the U.S. to withdraw their extradition request for Meng,” he told the Star on Thursday.
Saint-Jacques says the trials seem to be an escalation after previously reported attempts between Beijing and Washington to negotiate for a resolution on Meng’s case fell through.
“They want to send a message to Washington, ‘If you want to help free the Canadians, you know what to do, which is to make sure Ms. Meng will return to China.’ ”
What might happen to the two Michaels after guilty verdicts? What could Canada do?
There is no question of guilty verdicts, experts agree, but when the sentencing will happen is unknown, although Saint-Jacques thinks it will be sooner rather than later.
“China could move quickly and give stiff sentences just to underline to Washington they are serious. For Canada, there’s very little we can do … almost nothing, and that’s why the solution has to come from Washington.”
Saint-Jacques was involved when another Canadian, Kevin Garratt, was arrested in 2014 on espionage-related crimes. He was freed in 2016 at a time when Beijing wanted a free trade deal with Canada, but Saint-Jacques says Ottawa has no leverage now.
Ansley said that, while Canada releasing Meng would be seen as a surrender to Beijing’s bullying, President Biden could have legitimate reasons to withdraw the U.S. extradition request.
Biden could point to former President Donald Trump’s comments about possibly intervening in Meng’s case to get a better trade deal from China as indication that her case was political and therefore not worth pursuing, Ansley speculated.
What is happening with Meng Wanzhou’s extradition hearing in Vancouver?
Meng is accused in the United States of misleading HSBC to believe Huawei no longer had control over technology company Skycom, thereby putting the bank at risk of violating U.S. sanctions against Iran.
Earlier this month, Meng’s legal team introduced arguments to court that she was subjected to an abuse of process and that proceedings against her should be halted if any is proven.
Meng’s lawyers accuse Canadian and American officials of co-ordinating the collection of evidence for the U.S. fraud case against her under the guise of a routine border exam.
The B.C. Supreme Court has heard that Meng was held by border officers for three hours before she was arrested and informed of her rights, but Meng’s team has largely focused on the final seven minutes, when a border officer asked about Huawei’s activity in Iran.
Kyla Lee, a defence lawyer practicing in Vancouver, told the Star that even if these arguments prove unsuccessful, the process could still take years.
With Meng’s resources, she can easily afford to appeal the decisions and fight this all the way to the Supreme Court of Canada.
“The abuse of process angle is an important one. In my experience, the training and implementation of Charter rights by border officials is not up to the standard that it should be, and this case because of its profile could inform massive changes in that procedure,” Lee said.
“That being said, the standard to prove that (Meng’s treatment) amounted to an abuse of process is very high. The defence will essentially have to show that this was deliberate conduct, and not simply some ignorance of Charter obligations by the police.”
—With files from Jeremy Nuttall and The Canadian Press