China sentenced Canadian Robert Schellenberg to die. Will Meng Wanzhou’s release spare his life?

The resolution of the extradition case against Meng Wanzhou raises questions about the legal fate of Canadian Robert Schellenberg, who many believe was sentenced to death in China as retaliation for the Huawei executive’s arrest.

Schellenberg was sentenced in Nov. 2018 to a 15-year prison term in China over allegations of drug smuggling. But in 2019, about a month after Meng was detained at Vancouver International Airport on a warrant from the U.S., Schellenberg was retried and sentenced to death. 

Now, with Meng’s extradition ordeal resolved and her return to China, some observers suggest Schellenberg could see his death sentence commuted, but others express concern it may have little bearing on his case.

Jerome Cohen, founder and faculty director emeritus of New York University’s U.S.-Asia Law Institute, said he expects that in response to Meng’s return, China’s Supreme People’s Court  will suspend Schellenberg’s death sentence for two years. 

After which, Schellenberg would receive a new sentence — possibly a life sentence, or “the term to which he was previously sentenced” Cohen wrote in an email to CBC News.

Donald Clarke, a law professor at George Washington University and specialist in Chinese law, said it’s totally possible, feasible and within regular legal procedure for the Supreme People’s Court to say it doesn’t approve this death sentence.

“It is completely within their power to just go back to the original sentence,” Clarke said. “There’s no point in executing him now. Meng is free.”

Huawei chief financial officer Meng Wanzhou reads a statement outside the B.C. Supreme Court following the conclusion of her extradition hearing on Sept. 24. (Ben Nelms/CBC)

“One would think that China would now be trying to mend relations with Canada, or at least not deliberately trying to make them even worse,” he said. “There should be no embarrassment for China, no need to be seen as conceding anything if they were to just go back to the 15 years.”

High court reviewing death sentence

Relations between Canada and China have been strained since Meng’s arrest and the subsequent espionage charges laid against former Canadian diplomat Michael Kovrig and entrepreneur Michael Spavor.

The so-called two Michaels were released after Meng reached a deferred prosecution agreement with U.S. authorities related to fraud charges against her and her extradition case was dropped.

But China was accused of hostage diplomacy and trumping up those charges against Kovrig and Spavor in retaliation for Meng’s arrest in Canada, which Chinese officials viewed as politically motivated.

Schellenberg’s arrest on drug offences had initially received little media attention. Although he has proclaimed his innocence, the B.C. native has a history of drug-related offences in Canada, including a two year sentence in 2012 for drug trafficking.

It was only after his sentence in China was increased to the death penalty following the arrest of Meng that his case was politically linked.

Schellenberg has been accused of conspiring with others to smuggle 222 kilograms of methamphetamine from China to Australia in 2014. According to the Chinese court, Schellenberg was part of a group that planned to conceal the drugs in tires and tubing and ship it via container to Australia.

But an appeals court later ruled that the initial 15-year sentence was “light punishment” and “obviously inappropriate.” With prosecutors citing new evidence, a retrial was ordered. And in Jan. 2019 he was found guilty of being involved in an international drug trafficking ring, and sentenced to death.

In August, the high court in the northeast province of Liaoning upheld that sentence. His case is now in the hands of the Supreme People’s Court, which reviews all death sentences.

Charles Burton, senior fellow with the Macdonald-Laurier Institute and a former diplomat to China, noted that there’s no independence of the judiciary in China, and it’s all subject to the authority of the Chinese Communist Party.

“There is no question that if the Chinese Communist Party leadership determined that Mr. Schellenberg should not be subject to the death penalty, his sentence would be commuted,” Burton said.

Linked to Meng’s case

In Burton’s view, it’s pretty clear that Schellenberg’s death sentence was linked to the Meng extradition case. Yet he still has significant concerns about the Canadian’s legal fate.

“I’m gravely concerned that they will go through with the death penalty because some Chinese people say, well, Canada must be punished for detaining Meng Wanzhou  in the first place.”

“The fact that the matter has been resolved … a point still has to be made,” he said. “There are some issues of loss of face here with regard to the judicial process.” 

Burton said while it’s unlikely Schellenberg would get his original 15 year sentence reinstated, it’s possible the death sentence could be deferred for two years, and then, based on good behaviour, commuted to life in prison.

“But I couldn’t be confident of that.”

Michael Kovrig embraces Vina Nadjibulla following his arrival on a Canadian air force jet after his release from detention in China, at Toronto Pearson International Airport; Michael Spavor leaves Calgary International Airport. Both men spent more than 1,000 days in a Chinese prison. (Cpl. Justin Dreimanis/DND-MDN Canada/Reuters; Colin Hall/CBC)

Wenran Jiang, founding director of the China Institute at the University of Alberta, agreed that a commutation to a life sentence is a possibility, but that he wasn’t “optimistic about it” and that the Chinese do not have a tradition of offering leniency.

From China’s perspective, they have already compromised by releasing the two Michaels, Jiang said. 

Diplomatic effort 

Jiang said he didn’t believe that Schellenberg’s death sentence was connected to the arrest of Meng, but instead based on evidence discovered by prosecutors that show he had a larger role in the drug smuggling ring.

And that means Chinese authorities could face a  domestic backlash if Schellenberg’s sentence was reduced.

There would be a very populist or nationalistic backlash against authorities saying [they are] caving into pressure now releasing a drug trafficker while others are mercilessly put to death,” he said.

Jiang and Burton said Schellenberg’s fate may now lie in the diplomatic efforts of the Canadian government. 

“I think that there is no barrier whatsoever to the Canadian government engaging in diplomatic activities to try and see Mr. Schellenberg’s sentence be reduced,” Burton said.

“Highlighting to the Chinese authorities the damage that would be done to Canada/China relations by executing Mr. Schellenberg, I think would be an important priority for our government.”

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