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Botting heaps scorn on U.S. over latest Meng extradition manoeuvre

published January 24, 2019

The U.S. Department of Justice is foolhardy to persist in asking Canada to extradite detained Chinese executive Meng Wanzhou, says Dr. Gary Botting, a B.C. extradition lawyer who has been following the case closely since Meng’s arrest on Dec. 1.

“This will only ensure an escalation of the dispute with lasting and unforeseeable repercussions for all three countries,” Botting, principal of Gary N.A. Botting, Barrister and Solicitor, tells AdvocateDaily.

He is critical of what he terms the “bullheadedness” of U.S. officials in proclaiming that they would “meet all deadlines set by the U.S.-Canada extradition treaty,'' despite the ramifications of global discord if it does so.

“Canada’s Minister of Justice (David Lametti) should refuse to extradite under these circumstances,” Botting says, adding that declining the extradition process is covered under the Extradition Act and treaty.

”Canada’s Extradition Act and the treaty itself allow for wide executive discretion as to whether to extradite," Botting says. “That is the law.

“The minister should be using the law, as it is written, to protect the safety and long-term interests of Canadians,” he says. “Not to mention world peace.”

Assuming that the paperwork is filed, Lametti has 30 days to decide whether to issue an “authority to proceed” (ATP), which starts the extradition process, Botting says.

So far, the only step taken has been a provisional warrant, which is designed to keep Huawei's chief financial officer in Canada until the U.S. either perfects or abandons a formal extradition request. This entails the U.S. filing a “record of the case” (ROC) outlining the evidence in the form of the expected testimony of witnesses that the U.S. prosecutor says will support an eventual conviction, he says.

The Canadian Press (CP) reports that Meng is facing U.S. allegations that her company violated that country's sanctions against Iran, and specifically that she committed fraud by lying to American banks about it.

“It is doubtful that violating U.S. sanctions against Iran is a criminal offence in Canada,” says Botting. “But unfortunately, the Canadian Department of Justice has of late listed only the lowest common denominator offences in the ATP — in this case, it will likely be fraud and conspiracy to commit fraud.”

Since those are criminal offences in both jurisdictions, they will be easy to “prove” in a prima facie test such as occurs in an extradition hearing, he says.

“Ms. Meng’s defences are likely to arise from a different quarter altogether — from the fact that the extradition has been politicized and that the U.S. seeks her extradition for a political purpose — even as a bargaining chip if President Donald Trump is to be believed; and that the harm done by compromising the extradition process itself violates Ms. Meng’s constitutional rights," Botting says.

While a fair amount of damage has already been done, “It is not too late for the new minister of justice to exert his statutory authority in accordance with the rule of law,” he says.

“For him to sit on his hands at this juncture, as he has suggested that he is compelled to do, does not bode well for healthy, principled extradition practice. Parliament anticipated when it passed an Extradition Act that the minister must personally start — and always has discretion to stop — the process,” Botting says.

He cited s. 14, 40 and 44 of the Act, where the minister is given complete discretion.

Botting says that in recent years, the bureaucracy of the Justice Department has “taken over the asylum” and the ministerial discretion built into the Act has virtually been eliminated.

“It is quite likely that the provisional warrant of Ms. Meng was rubber-stamped without much forethought,” he says, "although Prime Minister Justin Trudeau claimed that he got wind of it days before the arrest."

China again urged the U.S. on Tuesday to abandon the extradition of Meng, who remains under partial house arrest in Vancouver, CP reports. She was detained at the behest of U.S. authorities, who allege Meng orchestrated the use of Skycom, a Huawei subsidiary, to evade sanctions against Iran between 2009 and 2014, according to court documents filed at her bail hearing.

Chinese Foreign Ministry spokeswoman Hua Chunying excoriated both Canada and the United States for what she called an arbitrary and unjust abuse of the extradition agreement between the two countries that “infringes upon the security and legitimate rights and interests of Chinese citizens,'' according to CP.

“Anyone with normal judgment can see that the Canadian side has made a serious mistake on this issue from the very beginning,'' Hua said as she called on both countries to stand down.

“We all need to shoulder responsibility for what we do. The same is true for a country. Be it Canada or the U.S., they need to grasp the seriousness of the case and take measures to correct their mistakes,'' she said.

Botting says the statement is "an oversimplification, but in principle, she’s quite right."

“Eat a little bit of crow now, and you can avoid forcing Canadians to feast on it for the next decade,” he adds.

Hua's comments came a day after 140 international China experts — including five former Canadian ambassadors — urged President Xi Jinping to free two detained Canadians. The letter praised former diplomat Michael Kovrig and entrepreneur Michael Spavor as bridge-builders between China and the world and said their detentions would make its authors “more cautious'' about travelling to China, CP reports.

China detained the pair Dec. 10 in an apparent attempt to pressure Canada into releasing Meng, the daughter of Huawei's founder, Ren Zhengfei. Huawei has close ties to China's military and is considered one of the country's most successful international enterprises, operating in the high-tech sphere where China hopes to establish dominance, the national news agency reports.

A Chinese court also sentenced Canadian Robert Lloyd Schellenberg to death last week, increasing his 2016 sentence of 15 years in jail on a drug-smuggling conviction.

— with files from The Canadian Press