More on the Meng Affair

An op-ed Ti-Anna and I wrote on the Meng Affair has been getting some attention, and here I offer more expansive thoughts free of the constraints of the op-ed form and of media interviews.

Our op-ed was submitted a few days before the Eddie Goldenberg piece was published, and thus we didn’t really have a chance to address his points. Speaking for myself, I think his advice–that the Trudeau government rely on Section 23(3) of the Extradition Act to short circuit the pending legal proceedings and send Ms. Meng back to China now in exchange for the two Michaels–is misguided, for a number of reasons. (Yesterday, the Prime Minister seemed to agree, and rejected the idea of a prisoner exchange.)

First, one of Mr. Goldberg’s justifications is that the extradition request may itself be politically motivated: “It has been clear from the start that the Trump administration considers to be in the realm of geopolitics.” Maybe so, but that concern is accounted for in the legal proceedings themselves. Indeed, one of Ms. Meng’s arguments against extradition is “that the USA is improperly attempting to use the extradition proceedings for economic and political gain,” an argument that the court has scheduled to be heard in June. Thus, even if doing so would be technically legal, it would be nevertheless be inconsistent with rule of law principles to invoke Section 23(3) before the court has a chance to rule on that argument in the first instance.

That brings us to what the “rule of law” means in the first place. Far be it for me to offer a comprehensive or definitive definition, but, to my mind, it includes, at the least, the idea that the outcomes of legal proceedings should be based on the law and the facts, after all available evidence has been vigorously examined and tested. And, whatever one might say about Mr. Goldenberg’s view of the motivations behind the extradition request, it cannot be said that they have been based on such an examination, given that he, presumably, has neither seen nor fully examined the evidence that Ms. Meng’s lawyers and the Canadian government will be debating in June.

Second, Mr. Goldernberg’s argument that a prisoner exchange is justified for “humanitarian reasons” is appealing, but also short-sighted. In the near term, it is surely humanitarian to get the two Michaels home safely. But what about the long term? Would agreeing to a prisoner exchange not incentivize future hostage-taking? Wouldn’t it undermine Canada’s efforts–indeed, humanity’s efforts–to create a world in which might does not equal right? I submit that it would, such that a prisoner exchange under the current circumstances would tend to create a less humanitarian world, in the long term.

Here, I must admit that it is easy to make such arguments when it’s not my family or loved ones at stake. If it were my wife who were being held hostage, would I take the same position? Probably not–but that speaks more to my love for my wife than it does to the wisdom of any particular argument or strategy. The tendency of people to take self-interested positions is one key reason to hold fast to the rule of law in the first place.

An equally hard question is whether I would take the same position if the CCP offered to release my father as part of the deal. Again, I would be lying if I said it wouldn’t be astronomically harder for me to be so sanguine about upholding the rule of law. But even then, if I took a step back and considered the issue from the perspective of the long-term interests of Canadians, and indeed of humanity, it would still seem that a prisoner exchange, at this time, before the court has had a chance to hear evidence and argument, would be unwise.

It’s worth pointing out, though, that the particular circumstances of Ms. Meng’s case are important to my analysis. First, there are ongoing legal proceedings, the legitimacy of which there is no reason to doubt–indeed, no one can confidently say that she doesn’t stand of chance of prevailing. Second, despite the rhetoric, she is not actually a “prisoner” of the Canadian government–she has not been convicted of anything, and she is in custody not because she is accused by the Canadian government of committing a crime, but because of an extradition request. Were she actually a prisoner of the Canadian government, convicted after trial, I do not think it would necessarily undermine the rule of law to exchange her for the two Michaels. That would be a political decision, and the wisdom of such a decision would depend on the circumstances. But that is not the case before us.