Political courage could end Meng’s ‘stairway to extradition’
The stairway to extradition in the case of Huawei executive Meng Wanzhou has been unnecessarily long and convoluted because the former and current minister of justice have not had the courage or the political will to intervene to stop it in its tracks, as they are entitled to do any time under s. 23 (3) of the Extradition Act, which reads: The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention.
Jody Wilson-Raybould could have done that in December 2018, but at the time she was deeply engrossed in her ongoing fight with the prime minister over the SNC Lavalin Affair. The PM wanted to defer prosecution of the corporation because it might cost the company a lot of jobs, but Wilson-Raybould refused.
Knowing her disposition at the time, the International Assistance Group (IAG) of the Department of Justice (DOJ) was understandably reluctant to advise the minister to intervene in Meng’s contemporaneous case. Acting like robots controlled by the United States, the IAG issued a provisional arrest warrant against her. In effect, the United States said “Jump!” and the Canadian bureaucrats asked meekly, “How high?”
They knew that it was highly unusual for the CFO of a major international corporation to be arrested on a provisional warrant for an alleged corporate misrepresentation: If that were standard practice, half the ranking politicians in America, from the president on down, could be held behind bars without a trial, merely on suspicion of fraud – certainly of “misrepresentation.”
U.S. did not want Huawei to control 5G technology
But while it protects its own, the United States, it seems, is all too willing to use its prosecutorial powers against rival non-American corporate competitors. It did not want Huawei to control 5G technology anywhere in North America.
Huawei was ahead of the race to develop 5G technology, and was promoting itself in Canada and Mexico on this front when the U.S. intervened to protect the interests of its own corporations. But it did so in a sneaky way: it asked Canada to arrest Meng when she had a stopover in Vancouver en route to Mexico City – a city that would no doubt greatly benefit from the latest 5G technology.
The U.S. was so anxious that one of its own corporate “runners” win the race that it cheated – with Canada’s help – by tripping the lead runner.
Instead of recognizing that the United States was not acting in accordance with international protocol in seeking Meng’s arrest, Canadian bureaucrats issued a provisional arrest warrant, and she was detained in an amateurish “take-down” at Vancouver Airport in which several of her constitutional rights were compromised. This bungling was probably due more to the officers’ adrenaline rush and ignorance of the law than out of any malice.
Once Meng was arrested, the minister of justice had two months or so to review the case and decide whether to convert the provisional arrest into a formal extradition proceeding.
Meng’s alleged crime had little to do with the U.S.
Up to this time, the United States had provided no summary of the case against her. It used the two months to prepare a “record of the case” which alleged that Meng had made misrepresentations in a PowerPoint presentation to the HSBC at a restaurant in Hong Kong. The details of the allegations are by now well known. It had little if anything to do with the United States, which in purporting to have jurisdiction to prosecute this case, in effect attempts to set itself up as an international policing agency.
This in itself should have tipped off a diligent Canadian justice minister that the United States was acting beyond its jurisdiction. But recall that Wilson-Raybould had just been demoted because of her refusal to cooperate with the Prime Minister’s office in the SNC Lavalin Affair. With the Meng case, the new Minister of Justice, David Lametti, inherited a mess – but under s. 14 of the Extradition Act he still had complete jurisdiction to refuse the U.S. request.
Instead, Lametti issued an Authority to Proceed, sealing Meng’s fate for years to come.
- Wrongful convictions, right to silence explored by new law journal
- Extradition is not a legal or judicial issue
The Chinese government knows this also: it can read the Act. Extradition is not a legal or judicial issue, and never was. It is a matter of political will. China knows that the legal proceedings are a red herring – an option, not a “rule.” And it signalled to Canada that it “knows” this fact by flexing its muscles in its own display of political will: arbitrarily increasing the sentence of Robert Schellenberg for drug smuggling from 15 years to the death penalty, and by sentencing Michael Spavor to 11 years as a “spy.”
That muscle-flexing is likely to go on for as long as Canada remains in denial that it is in control of its own political will by discharging Meng – or (better yet) until the United States withdraws its extradition request and drops her name from the indictment.
Nobody could have anticipated the loss of freedom for individual Canadians, not to mention the billions of dollars of trade lost and tariffs imposed, caused by a simple extradition request made by an unknown prosecutor with high ambitions in the Eastern District of New York.
In my view, the extradition judge erred in refusing to admit evidence from the bank that demonstrated that it knew the relationship between Huawei and Skycom, and that showed that the U.S. had withheld evidence from the Record of the Case that appeared to exonerate Meng. If the bank had its eyes wide open to the nature of the relationship, there was no fraud, no misrepresentation. This evidence will no doubt be sent by the judge to Lametti for his consideration, should Meng be committed for extradition.
No Canadian law was broken
In any case, no Canadian law was broken. If that had happened, Canada would have been in a position to prosecute Meng, given that Canada’s position internationally is no different from the United States. Why hasn’t Canada charged her? Because Canada knows that, like the United States, it has no jurisdiction to prosecute conduct that takes place in a third country, by a national of that country, with a bank registered in a fourth country – the United Kingdom.
It appears that the U.S. has thrown out its net too far, and has caught a big fish along with all the little fish it can usually capture in its nets, through the time-honoured method of assuring “confidential witnesses” that they will receive reduced punishments if they can implicate other fish in their alleged “crimes.” That is a method that has worked in America since the witch hunt days. Here, however, the U.S. used a sprat to catch a mackerel – and has landed a shark.
The solution? Cut everyone loose.
• Gary Botting is the author of Canadian Extradition Law Practice (five editions), Extradition between Canada and the United States, Extradition: Individual Rights vs. International Obligations, Halsbury’s Laws of Canada: Extradition, and Wrongful Conviction in Canadian Law.