OTTAWA — President Joe Biden's determination to take a hands-off approach to the administration of justice in the United States impeded initial Canadian efforts to pressure the U.S. to negotiate a deferred prosecution agreement with Huawei executive Meng Wanzhou, a new book says.
The U.S. did eventually negotiate an agreement with Meng in September, allowing Canada to drop extradition proceedings against her.
That triggered the release of Canadians Michael Spavor and Michael Kovrig. They had been detained in China for nearly three years in what was widely considered retaliation for Meng's arrest at Vancouver's airport in December 2018.
A behind-the-scenes glimpse into how that agreement came about is offered in "The Two Michaels: Innocent Canadian Captives and High Stakes Espionage in the U.S.-China Cyber War," co-authored by Mike Blanchfield, a reporter with The Canadian Press, and Fen Hampson, professor of international affairs at Carleton University.
Six months before the simultaneous release of Meng and Kovrig and Spavor, the authors say, Canada's ambassador to China, Dominic Barton, spent several weeks in Washington trying to persuade the U.S. Justice Department, Huawei and Meng's lawyers to come to some agreement.
But they say his efforts foundered on Biden's vow to not interfere with the administration of justice the way his predecessor, Donald Trump, had done.
"Biden came to power determined to rebuild public trust in American institutions, and undoing Trump's politicization of the Justice Department, which he attempted to run as his private law firm, was near the top of his list," the book says.
"Barton's efforts to find some sort of legal resolution to Meng's case faltered at that red line: the U.S. Department of Justice was off limits to the White House."
The book cites an unnamed Canadian source with direct knowledge of the talks putting it this way: "Things were made more difficult because Biden became more Catholic than the Pope about the Justice Department, trying to distinguish himself from Trump's interference with the administration of justice."
Nevertheless, citing a senior U.S. government official, the book says Justice officials themselves wanted to "re-examine the merits" of Meng's case, which hinged on an allegation that she had violated U.S. sanctions against Iran.
While they considered Huawei's conduct to be illegal, "there was a growing realization that other banks and institutions that had run afoul of the Iran sanctions weren't being treated the same way," the book says.
It does not go into detail but some critics have argued that it was unprecedented for the U.S. to launch criminal proceedings against Meng personally, rather than targeting Huawei through civil litigation as had been done with other companies.
"Troubled by elements of the Meng indictment, federal justice officials began to warm to the idea of a deferred prosecution agreement," the book says.
At the same time, the book says China was also growing more interested in a negotiated resolution, in part because it wanted "a clean slate" heading into the 2022 Olympic Winter Games in Beijing.
The turning point came last summer, the book says, when Meng's marathon extradition hearing before the British Columbia Supreme Court finally wrapped up and it had become "apparent that her chances of avoiding extradition were slim."
On Sept. 24, Meng appeared virtually in a New York courtroom, where Meng accepted the contention, outlined in a U.S. statement of facts, that she and other Huawei employees had deceived global financial institutions about the company's activities in Iran.
She pleaded not guilty to all charges.
In return, the U.S. deferred the charges against her and dropped its extradition request to Canada. Within hours, Meng was on her way home to China and the men who had become known as the "two Michaels" were on a plane back to Canada.
The book chronicles the various efforts by Canada and the supporters and family of Kovrig and Spavor to free them, which involved players from multiple political parties.
Allan Rock, a former Liberal cabinet minister and Canadian ambassador to the United Nations, headed a delegation of former diplomats, politicians and academics who met in November 2019 with Chinese officials to discuss Canada-Sino relations.
After the head of the Chinese delegation lambasted Canada as a "lackey of the United States," the book says Rock forcefully defended Canada for strictly following the rule of law. He "reproached" the Chinese for the "inhumane conditions" in which the two Michaels were being held, in stark contrast to Meng, who was allowed to live in her Vancouver mansion while enjoying the benefit of legal representation in a fully transparent court proceeding.
The Chinese scoffed at Rock's rule-of-law argument, pointing to section 23(3) of Canada's Extradition Act that specifically empowers the justice minister to, at any time, halt an extradition case. At the time, Rock parroted the Canadian government's insistence that such an intervention would happen very rarely but he acknowledged to the authors that it was "a non-satisfactory response."
Rock, with former Supreme Court justice Louise Arbour, would later argue in a letter to the Canadian government that it should in fact invoke section 23(3) to put an end to Meng's case and thus remove the obstacle to Kovrig and Spavor's freedom. His delegation left China with the distinct impression that China would release the men if Meng's extradition was dropped, despite its public insistence that there was no connection between the two.
Rock and Arbour "got no response to their 2020 letter to the federal government, not even a polite, pro-forma acknowledgment that it had been received," according to the book.
Former Progressive Conservative prime minister Brian Mulroney also weighed in during what the book describes as a "pointed and frank" phone conversation with China's ambassador to Canada, Cong Peiwu, in mid-July 2021.
"I don't know why you felt as though you had to do this," Mulroney recalled telling Cong. "You're hurting yourself. And as far as I'm concerned, you would gain much more by not asking for anything and just freeing the Canadians.
"We know full well they were picked up on the sidewalks there to satisfy a political agenda in Beijing. You do yourselves a lot more good by instituting an initiative that would free the Canadians. It would gain you a lot of plaudits around the world."
Although Mulroney had at one point urged the federal government to send former prime minister Jean Chrétien as a special envoy to China to negotiate the release of Kovrig and Spavor, he did not agree with Chrétien's suggestion that cancelling Meng's extradition case would help "normalize" relations with China.
"(Mulroney) had never advocated for a prisoner swap of any kind. He backed the government's view that Canada's extradition treaty with the U.S. is sacrosanct, not to be messed with to placate the Chinese, as painful as that implication would be for the two Michaels," the book says.
"We signed a treaty with another sovereign government. They've asked us to invoke it. We've invoked it," Mulroney told the authors.
"And so, to that extent, we were like innocent bystanders in this."
This report by The Canadian Press was first published Nov. 10, 2021.
Joan Bryden, The Canadian Press