Chinese National Claiming Canadian Constitutional Rights

Huawei CFO, Meng Wanzhou   Still capture from video

"This case concerns a deliberate and pre-meditated effort on the part of the defendant officers to obtain evidence and information from the plaintiff in a manner which they knew constituted serious violations of the plaintiff's rights."
"[The officers] did not promptly inform the plaintiff of the reason for her detention, afford her an opportunity to retain and instruct legal counsel without delay, or inform her of her right to do so under the Charter."
"[They directed Meng to surrender her electronic devices and computers and her passwords] which the plaintiff provided, believing she had no choice as the CBSA officers had intentionally failed to advise her of the true reasons for her detention, her right to counsel, and her right to silence."
Partial text of civil claim filed with the B.C. Supreme Court

"They took her under custody without telling her why."
"They disguised the real reason why they detained her. Her rights were violated."
Gary Botting, Vancouver extradition lawyer

"This is a very clever move, tactically, on her part."
"I don’t even think she cares that she wins… [she wants to] delay the inevitable extradition hearing and result."
Ari Goldkind, criminal lawyer, Toronto

There are thirteen criminal counts of conspiracy, fraud and obstruction laid out by the U.S. Department of Justice against Chinese communications technology giant Huawei, and its chief financial officer, Ms. Meng. On December 1, on a stopover at Vancouver airport, Ms. Meng was arrested by the RCMP on an extradition warrant issued by the United States. Since then, the Canadian Department of Justice has authorized the matter to proceed to extradition. 

In the immediate aftermath of this high-profile and hugely controversial arrest, Chinese authorities and the Chinese embassy in Ottawa have been vociferous in their condemnation of Canadian authorities, emphasizing their huge displeasure at this criminal harassment of a Chinese national, going so far as to suggest that racism is involved, and that Canada is guilty of bypassing the international rule of law. 

Supporters hold signs and Chinese flags outside B.C. Supreme Court during the third day of a bail hearing for Meng Wanzhou, the chief financial officer of Huawei Technologies, in Vancouver, on Tuesday December 11, 2018. DARRYL DYCK / THE CANADIAN PRESS

As a sign of Chinese government displeasure, two Canadians in China on business were swiftly taken into custody, informally charged with attempting to destabilize Chinese security. They were held incommunicado, and only one, former diplomat Kovrig, was eventually permitted Canadian consular services while businessman Michael Spavor was given no 'privileges' and nor given access to legal advice. Both have been held in isolation cells and interrogated as well as subjected to psychological mistreatment.

Ms. Meng, on the other hand, was speedily given bail and was discharged under bail conditions to live in one of the two luxury properties she owns in Vancouver; a property owner, not a permanent resident, much less a citizen of Canada. Every courtesy has been extended to her, none whatever to the two Canadians held in China as obvious leverage, while the fate of a third Canadian whose original sentence for drug smuggling was overturned now awaits the outcome of a death sentence.

China and Canada are at an impasse. Relations between the two have ground to a halt amid accusations on the one hand and explanations on the other. China is now Canada's second-largest trading partner. China's economy is on a bumpy ride at the present time resulting from a trade war with the United States. Canada, it would seem, is being book-ended by two massive world powers and economies, one a traditional ally, the other a sub-optimal partner in trade with rules all its own.

The newly-filed suit filed on behalf of Huawei executive Meng Wanzhou accuses officers of the Canadian Border Services Agency, the Royal Canadian Mounted Police and the federal government of "serious violations" of Ms. Meng's constitutional rights. But what constitutional rights under Canadian law has she been deprived of, as a Chinese citizen? Portraying her as innocent of any knowledge of demanding her rights simply points out that under Chinese law there are no recognized individual rights.

The civil suit alleges that the RCMP colluded with the U.S. Department of Justice to arrange that Canadian border officials would take Ms. Meng into custody as she deplaned in Vancouver. The two countries, the U.S. and Canada have longstanding partnerships in areas of law and order, investigations and intelligence-sharing. That this collaboration took place is hardly surprising and nor is it sinister. Yet the claim is that Ms. Meng's 'constitutional rights' were abridged?

Michael Spavor, left, and former Canadian diplomat Michael Kovrig, right, have been detained in China since December. (Associated Press/International Crisis Group/Canadian Press)

Congruent with these events, China, which had invoked national security as justification in arresting and imprisoning the two Canadian men, has now added a few details through the Chinese Central Political and Legal Affairs Commission that issued a statement declaring that Mr. Kovrig, who in his mission post as a diplomat had worked in China, but had more latterly repeatedly entered China with an ordinary passport and business visas "stealing and spying on sensitive Chinese information and intelligence via a contact in China".

That contact, none other than Michael Spavor, whose business as a travel agent arranging trips to North Korea had him stationed in China. He is now accused by Chinese authorities of being that "contact in China" used by Mr. Kovrig to ill purpose, or as the Chinese have put it: "Spavor was Kovrig's main contact and provided him with intelligence". The statement setting out these two men's crimes against China was pleased to add "China is a country with rules of law and will firmly crack down on criminal acts that severely undermine national security." 

It is, of course, Chinese agents who have traditionally spied both militarily-politically and industrially on other countries well beyond the constant undertaken by most who have also so indulged. In China it has been a state business to achieve a leg-up in research and industry by hijacking trade formulae and research that other nations have pioneered to jump-start China's own, saving them tedious years of starting from an initial platform.

"The violation of their human rights [Kovrig and Spavor] is so much more grave than violation of her constitutional rights."
"But that’s not even possible for them. The fact that they were denied a lawyer in the first place means they are not entitled to any justice."
Lynette Ong, associate professor of political science, University of Toronto