814 THE ADVOCATE
VOL. 79 PART 6 NOVEMBER 2021
Even if there was no formal deal, and though China attributed the
Michaels’ release to “medical” grounds, clearly the timing was not a coincidence.
There is understandable speculation that China made sure to release
them promptly in order to cement the impression that the cases were tied,
and that if another country were to arrest a prominent Chinese national in
the future, hostage diplomacy (though not a term China would adopt)
rather than legal process will prevail.18 However, at least within Canada,
legal process did prevail, even if not reaching the point of Holmes A.C.J.
issuing substantive reasons on the extradition request.
The strength of (and threats to) the rule of law in Canada are important
for us to be alert to and consider. B.C. lawyers promise and swear, or affirm,
to uphold the rule of law. Usually without a second thought we do exactly
that as we advise clients, draft contracts and appear before courts and other
tribunals. We are in a profession that presumes, both as a worthwhile theoretical
construct and as a practical reality (otherwise there would be little
point in retaining us), the importance of law in establishing process and
achieving outcomes.
Where players who seem to reject the application of law achieve an outcome
that is contrary to law, there is profound reason for concern about erosion
of the rule of law in our society. However, within Canada an outcome
consistent with law, pursuant to our process and under the Extradition
Treaty (which was necessarily dependent on the unfolding of events in the
United States), was achieved.
And indeed, it cannot be said that Meng herself, based at least on what is
known to us, rejected the rule of law; rather, as noted above, the court recognized
her engagement as cooperative and courteous. Further, the rejection
by China of the validity of Canadian obligations under the Extradition
Treaty and perhaps attendant Canadian process is not in itself a mark of
Canadian failure. At least theoretically, both Canadian law and the treaties
that Canada enters into should express values that are broadly shared
among Canadians, not necessarily with foreign states other than, in the case
of a treaty, a treaty partner. Of course, the countries that enter into an extradition
treaty may try to find common ground between values captured in
their respective domestic laws (e.g., in the form of “double criminality”),
but—although this is in no way to excuse its conduct toward the “two
Michaels”—the Extradition Treaty was not with China.
Even if our rule-of-law reputation and reality may have survived the
Meng saga, however, there are other threats to the rule of law in Canada, or
at least reasons for vigilance.
As noted above, at least theoretically, Canadian law is an expression of
shared domestic values.19 It should, by extension, constrain the few