John McCallum’s position as the most senior spokesman for Ottawa to Beijing meant that the government was put in a position where it could either do nothing, and repudiate the law, or else repudiate McCallum, writes Brian Lee Crowley.

By Brian Lee Crowley, February 11, 2019

As William Shakespeare so pungently reminded us, “The evil that men do lives after them.”

Truer words were never spoken about Canada’s ambassador to China, John McCallum. He may now be our “former” ambassador, but he has deeply damaged Canada’s ability to pursue a principled and effective policy in response to Chinese provocation.

Our arrest of Huawei’s CFO Meng Wenzhou set off a tempest of retaliatory actions by the Chinese, who believe Canada had the option of not acting on the US request. That’s not surprising, because the Chinese, unlike Canada, do not have the rule of law. If the Chinese Communist Party have a view about who should be prosecuted, when and why, and about what sentences should be handed down, they simply issue orders to the police and the judiciary.

That’s not how it works in Canada. We have labored mightily to keep political interference out of the legal system. If a government official tries to call a judge to tell him or her what the government’s preferred outcome in a court case is, it would be a scandal. That is one of the bedrock strengths of Canadian democracy. Our freedom as individuals is not in the hands of politicians with votes to seek, but in the hands of independent judges who are carefully insulated from political interference.

The Chinese dismiss this as window dressing. They do not accept that Canadian politicians cannot simply issue orders to any part of the state’s machinery, including the police, prosecution and judiciary. The Chinese Communist Party is above the law. In Canada, happily, no one is.

So China’s campaign of intimidation is in effect a punishment for Canada being a society based on the rule of law and limits on the power of the state. What campaign am I talking about? The detention of two Canadians, Michael Spavor and Michael Kovrig, and the sudden re-sentencing to death of a convicted Canadian drug smuggler, Robert Schellenberg. Further unspecified punishments are threatened.

Curiously, China has not launched a parallel campaign to bully the Americans into withdrawing their extradition request, even though Canada was only responding to an American request in the first place. If the Americans did drop the case, Canadian proceedings against Ms. Meng would cease.

Concentrating their fire on Canada makes it clear the Chinese think we will bow to political pressure. Ironically that means that the Chinese have increased substantially the pressure on Canada’s authorities not to seek a political solution, but to hunker down behind the firewall of the rule of law and judicial independence. Our absolutely correct reply to China has been: we cannot do what you request, as we are bound to act in accordance with the law, no matter how much you threaten us and our citizens.

Then along came Mr McCallum. In two separate interviews with media in Canada he sounded more like Ms Meng’s defence counsel than he did the government of Canada. He suggested: 1) the case against Ms Meng was politically tainted by the comments of US president Donald Trump; 2) that the case for extradition was weak; and finally 3) that it would be a great outcome for Canada if the US dropped the extradition request.

The scandal around Mr McCallum’s remarks is not that they are wrong – in some cases they may have merit, although he is wrong on some key points. The issue is that he was the officially designated spokesman of the Government of Canada to the Government of China. Beijing immediately trumpeted McCallum’s remarks as evidence that they were right all along and that even Canada’s own ambassador thought so.

Public figures are held to a higher standard than ordinary citizens in what they can say about court proceedings. Why? Because there must be no suggestion that politicians tried to influence judicial objectivity by saying publicly what they think the court’s decision should be. Even if the court’s objectivity remains unimpaired, the appearance of interference is enough to taint the outcome.

John McCallum’s position as the most senior spokesman for Ottawa to Beijing means that, as soon as he said these things, the government was put in a position where it could either do nothing, and repudiate the law, or else repudiate McCallum, making explicit his comments did not represent the official view in Ottawa. Still, once said his comments cannot be unsaid and they will surely serve as fodder for Beijing as well as Ms Meng’s legal defence team.

The score so far? Rule of law, one, Beijing’s bullies, zero, but our defence has been sadly weakened by a star player who got confused about what team he was on.

Brian Lee Crowley is the Managing Director at the Macdonald-Laurier Institute.

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