Criminal Law

Meng extradition political poppycock: Botting

By Dr. Gary Botting for AdvocateDaily.com

The attempted extradition of Chinese corporate executive Meng Wanzhou by the United States is entirely political.

The chief financial officer for Huawei was reportedly on her way to Mexico to promote her company to Mexican government officials and others, hoping that they would adopt Huawei 5-G technology despite American determination that it should be kept out of North America. Her business trip was cut short by U.S. intervention.

The CIA had obtained a copy of the passenger manifest and passed it on to Homeland Security, who cross-referenced it with outstanding U.S. warrants. As early as last August, at the behest of the FBI, a New York court had issued a warrant for Ms. Meng in connection with an investigation arising from allegations of misrepresentation levelled by the Hongkong Shanghai Banking Corporation. Thus, at the end of November, Ms. Meng’s name on the passenger manifest came up positive in the FBI’s computer cross-check of a flight from Vancouver to Mexico City.

The FBI quickly tossed the hot potato to the U.S. Department of Justice, which immediately approached Canada’s Justice Department with a request to issue a provisional arrest warrant if or when she landed in Vancouver, referencing the Canada-U.S. Extradition Treaty (CUSET).

The United States routinely checks passenger manifests for aircraft flying through U.S. air space. However, there are obvious routes that Cathay Pacific and other airlines could take to pass between Alaska and Hawaii without encroaching directly on U.S. airspace. The very notion that the United States should regard a commercial flight over the Pacific Ocean from China to Canada as passing through U.S. airspace is unthinkable.

However, after her planned eight-hour stopover in Vancouver, Ms. Meng would undoubtedly have to fly over the U.S. in the second leg of her trip to get from Vancouver to Mexico. Checking the flight manifests for all flights from Canada to Mexico is standard U.S. practice. Having determined well in advance that Ms. Meng was on the flight from Vancouver to Mexico City, the Americans worked backward to determine her incoming flight to Vancouver.

The actions of the United States reek of politics. They didn’t want her to get to Mexico, where she and the corporation she represented would be feted and celebrated.

The alternative? Use Canada to do their dirty work. Get the RCMP to arrest her pursuant to CUSET, which allows — in fact, in the name of “comity” insists upon — Canada obeying U.S. orders, at least when it comes to issuing provisional arrest warrants. The U.S. delayed perfecting their extradition request for two months. In the meantime, Jody Wilson-Raybould was removed from the minister of Justice/Attorney General portfolio, to be replaced by David Lametti. Following the lead of Prime Minister Justin Trudeau, Lametti claimed that he could do nothing because the matter was before the courts. Yet at that point, the ball was entirely in his “court.”

Ultimately, Ms. Meng cannot be extradited fairly or legally. Ordering her discharge should be a relatively simple decision.

Counsel for the attorney general usually take the position that an extradition hearing should be heard in one day — two at most. This, of course, seems absurdly short, but in most jurisdictions, that has become the norm. Two years for the initial extradition hearing is about ballpark for the entire process, including appeal and judicial review. But delay may be a good thing when so much is up in the air in the more obvious political sense.

In saying that the case should proceed “expeditiously,” Ms. Meng’s counsel, David Martin, was alluding (with irony) to a 1997 caseanticipating a line that counsel for the A.G. is usually quick to cite. It was an inside” joke — doubly ironic in that, with a straight face, Mr. Martin was able to set a January 2020 date for the beginning of the extradition hearing.

The defence position in extradition proceedings is almost always “delay, delay, delay” — in the knowledge that the ultimate surrender for extradition is a political decision that must be decided by the minister of justice personally, and some ministers of justice are simply more reasonable than others.

The "double criminality" issue in the Meng case has at least three hurdles to surmount.

The first hurdle is jurisdictional — does the United States have jurisdiction to charge the executive of a megalithic and well-respected international corporation with conspiracy to commit fraud, bank fraud, etc. when the alleged conduct took place in a foreign jurisdiction (Hong Kong) with a foreign-based bank (Hongkong Shanghai Banking Corporation)? If not, Canada should not extradite.

To do otherwise would endorse the United States’ bid to act as an international corporate police force.

The second hurdle is related to the weak jurisdictional position of the United States: Does skirting U.S. sanctions against Iran (as Ms. Meng is alleged to have done through a subsidiary company) break Canadian law?

No.

The third “dual criminality” hurdle is, Would the same conduct violate the laws of Canada? That is to say, would Canada act on its own initiative, under these circumstances? Has it ever done so in the past?

No.

These — and the obvious Charter infractions Ms. Meng encountered upon her arrival in Canada — should be enough to warrant Ms. Meng’s discharge.

However, that doesn’t end the matter, because wherever she goes in the western world, she will be the subject of other provisional arrest orders if her plane happens to touch down at an airport in a country which has an extradition treaty with the United States.

In other words, be careful what you wish for. “Winning” the extradition battle will not necessarily mean winning the war.

The only way Ms. Meng can be free of this gross intrusion on her liberty is to cut off the Gorgon’s head at the neck. China must insist that her name be struck from the indictment before further trade negotiations proceed.

That simple stroke of the pen would result in her continuing her life without a perpetual cloud enshrouding her every move, and would go a long way to resolving Canada’s problems with China. The four Canadians being held there could be returned home, the restrictions on the import of canola, pork, and wheat to China would likely be lifted, and everything would return, more-or-less, to normal.

Unknown to the general public at the time, the Meng case occurred at the worst possible time for the prime minister, when the then minister of justice was refusing, of her own personal initiative, to issue a deferred prosecution agreement to SNC-Lavalin, despite the director of public prosecutions having recognized that there would be political outfall from refusing this request.

On 1 Dec. 2018, when Department of Justice (DOJ) staff issued a provisional arrest warrant for Madam Meng, neither the minister of justice nor the prime minister intervened. Clearly, they had no comprehension of the magnitude of the political fallout such a thoughtless move would have upon the population of Canada.

Prime Minister Trudeau (and later Mr. Lametti) were mistaken when they said that at that stage the matter was before the courts and subject to the rule of law. For two months, it was in their political arena. They could have nipped it in the bud.

They also implied that obeying the request for the issuance of a provisional arrest warrant was a matter of comity between nations, and they had no choice but to obey the provisions of the CUSET.

Poppycock! If that were the case, every “request” of this nature would be interpreted as an order. And the person giving the orders dictating Canada’s actions would, in effect, be the prosecutor in the United States.

Canada should have looked at the request to issue a provisional arrest order very carefully. Department of Justice officials are not paid to jump at the behest of foreign powers, but to screen and weigh each application made by a foreign state.

Whereas Canada accepts virtually any request made by the United States, Great Britain (for example) rejects most of the requests it receives, including hundreds made by fellow members of the European Union, such as Poland, pursuant to a European arrest warrant.

Whatever the excuse of bad blood between the PMO’s office and the DOJ on 1 Dec. 2018, DOJ officials had the responsibility to alert the minister to the fact that arresting Ms. Meng would have huge political consequences. Ms. Wilson-Raybould, in turn, had the responsibility of alerting the PMO’s office, which could have consulted with the Privy Council and decided that, as in the SNC-Lavalin matter, proceeding with extradition would have dire consequences. The provisional arrest warrant would not have seen the light of day.

The new minister had ample time to stop the extradition process in its tracks by not issuing an authority to proceed. He chose instead to let the extradition procedure take its course.

The rest is history — in the making.

To Read More Dr. Gary Botting Posts Click Here