The Chinese government makes it really hard to believe that its detention – and now arrest – of Canadians Michael Kovrig and Michael Spavor is anything but politically motivated. It adamantly protests the charge that Kovrig and Spavor’s detention is somehow related to the troubles Huawei Technologies is facing in North America; it denies that this is tit-for-tat diplomacy.

But it’s actions reflect otherwise.  The initial detention of Kovrig and Spavor on December 10, 2018, came only days after Meng Wanzhou, Huawei’s Chief Financial Officer and the founder’s daughter, was arrested by Canadian authorities in preparation for extradition to the United States. And now, the formal arrest of the two Canadians – after 5 months in detention without access to a lawyer – came only hours after U.S. President Donald Trump signed an executive order prohibiting U.S. telecom companies from purchasing foreign equipment from companies deemed a national security threat and the United States Commerce Department officially listing Huawei as such a threat.  Not only does this lock Huawei out of the U.S. market, by being listed as a security threat, Huawei will also no longer be able to purchase key component parts from U.S. tech companies such as Intel, Qualcom, Broadcom and Google; parts that are integral to the future success of its business.

On Thursday morning, less than 12 hours after the U.S. government issued its announcements, the Chinese government announced that Kovrig and Spavor had been formally arrested on charges of stealing state secrets, Article 111 under China’s Criminal Law (translation courtesy of China Law Translate). Kovrig is suspected of “gathering state secrets for transmission outside of China” and Spavor is suspect of “stealing and providing state secrets for transmission outside China.”  Although the prosecutors are required to issue an arrest warrant upon arrest, it is unclear if this was done or to whom it was given (see Article 93 of China’s Criminal Procedure Law (CPL), Art. 93 –  translation courtesy of China Law Translate).  Professor Maggie Lewis does a great analysis of what the world can expect at this stage of the case.

But here is the rub that makes it increasingly hard to believe that the Chinese government’s actions against Kovrig and Spavor are not retaliation for what is happening to Huawei. The Chinese government decided to arrest Kovrig and Spavor one month earlier than they had to.  Because Kovrig and Spavor were being detained under Residential Surveillance at a Designated Location (RSDL), under Chinese Criminal Procedure Law, the public security authorities had up to six months – or until around June 10, 2019 – before they had to request the official arrest of the two (CPL Art. 79). Once the prosecutors formally arrest the suspect, the time frame to investigate becomes much tighter.  As a result, it is a rare occurrence for China’s public security bureaus not to take full advantage of these six months. But it appears that announcing the arrest of these two only hours after the U.S. declared Huawei a threat to national security was more important.

This isn’t to say that the U.S. is innocent of gaming the Huawei situation as a way to gain leverage against China in the current trade battle. But what is different here is that Chinese government is dealing with two lives; two people who could end up in a prison for a very long time basically as pawns in this game.  Trade disputes can be settled.  But the criminal justice system is a body on to itself. And once it is engaged, especially in China, it’s hard to turn back. 

On Friday, Meng Wanzhou, the chief financial officer of Chinese telecommunications giant Huawei, filed a lawsuit alleging that the Canada Border Services Agency (“CBSA”), the Royal Canadian Mounted Police and the attorney-general of Canada violated her constitutional rights prior to her arrest for extradition to the United States. In her claim, Meng alleges that on December 1, 2018, while transferring flights in Vancouver, CBSA detained her under the guise of a routine immigration inspection.  It was only after three hours of questioning and the seizure and search of all her electronic devices did CBSA finally inform her that she was under arrest, had the right to remain silent and had the right to an attorney.

Meanwhile, in China, two Canadians face a similar predicament.  Like Meng, they have been held in detention; they have been denied access to a lawyer; and they are being bombarded with questions, all in the attempt to have them incriminate themselves. But unlike Meng, their detention is now approaching three months, not a mere three hours; and there is no hope that they will ever be able to bring the claims she has raised – the abuse that is inherent when detained and questioned about a possible crime without a lawyer – against the Chinese government. 

On December 10, 2018, in what many believe was retaliation for Canada’s arrest of Meng, Chinese public security bureaus (“PSB”) picked up Michael Kovrig and Michael Spavor, two Canadians working on conflict resolution between North Korea and pretty much the rest of the world.  Kovrig, a former diplomat at the Canadian embassy in Beijing, was working for the non-profit International Crisis Group. Spavor was a consultant living in China and working on North Korean issues, include travel tours of North Korea.  Both were picked up by public security, Korvig by Beijing PSB and Spavor by Dandong PSB, for questioning related to possibly “endangering national security,” a crime that could encompass a variety of activities. (See China’s Criminal Law (“CL”) – English translation courtesy of China Law Translate – Arts. 102-112).

But unlike Meng, who is out on bail in Vancouver, free to meet with her lawyers and assist them in bringing new cases that challenge her current situation, Kovrig and Spavor sit in an unknown location in China, at the beck and call of the PSB and with little contact with the outside world.  Unfortunately the rights that Meng can avail herself – right to bail and the ability to challenge the constitutionality of her arrest – are not available to those suspected of crimes in China. Instead, for anyone suspected of crimes endangering national security, Chinese police are able to institute residential surveillance at a designated location (“RSDL”) for up to six months. (See China’s Criminal Procedure Law (“CPL”) – English translation courtesy of China Law Translate – Arts. 75 & 79).  And this six-month RSDL occurs before the police arrest the suspect, giving them unlimited access to interrogate the individual in order to build their case, or more aptly to pressure the suspect into confessing.

While the designated location cannot be a detention facility (CPL Art. 75), it can be any other place where the police maintain constant surveillance. And while most criminal detainees have the right to meet with their lawyer, those suspected of endangering national security do not.  Instead, the investigating body – either the PSB or the prosecutor’s office – must approve the meeting. (CPL Art. 39). And largely they do not approve such meetings. Why should they?  From the six-month RSDL to the denial of lawyer access, the system itself incentivizes the PSB and prosecutors’ offices to ratchet up the possible charges, detaining individuals with crimes of endangering national security and then use the next six months to figure it out. 

Add to that the fact that the detention of Korvig and Spavor comes in the midst of the Chinese government’s row with Canada over the arrest and possible extradition of Meng to the United States.  A day after Meng’s lawyers announced that she filed a lawsuit against the Canadian government, the Central Political and Legal Affairs Committee of the Chinese Communist Party posted an article on its website about Kovrig’s detention and possible crime.  Relying on an unnamed source within a “relevant department,” the article stated that Kovrig is being investigated for the specific crime of stealing and spying on China’s state secrets and intelligence (CL, Art. 111).  According to this unnamed source, since 2017, Kovrig would enter China on his work visa and obtain state secrets from Spavor. The article failed to state what those state secrets were and how two Canadians meeting and discussing a topic they both work on could somehow rise to the level of stealing state secrets. Oddly, Spavor’s legal liability in all of this was not mentioned.

But the article raised the very real possibility that the Chinese government is willing to send Kovrig to jail for a very long time. Stealing state secrets carries a prison sentence of five to 10 years but for those situations where the circumstances are considered “serious,” the sentence can be anywhere from 10 years to life. (CL, Art. 111). If for some reason “grave harm” to China resulted, then the death penalty is a possibility. (Id.)

So while Meng rightfully accesses the protections afforded to all suspects in Canada’s criminal justice system, including the right to zealously challenge the state’s case, Kovrig and Spavor have another three months to go in RSDL before they even find out what charges will be filed against them.