The judge in the extradition hearing of Chinese executive Meng Wanzhou told a federal government lawyer Wednesday that this country needs to be wary of sending someone to face trial in circumstances that Canadians would find objectionable.
Associate Chief Justice Heather Holmes of the B.C. Supreme Court did not say that the U.S. request for Ms. Meng’s extradition is objectionable. But she raised the possibility for the first time that a case like this one might be – and that it would be a judge’s role to say so, and to reject the case for that reason. She said that could be possible if the law broken in the country requesting an extradition was not consistent with Canadian values.
The Meng case has become a flashpoint for conflict between Canada and China. China has accused Canada of accepting a politically motivated extradition request from the United States, and has detained two Canadians, Michael Spavor and Michael Kovrig, for more than a year in apparent reprisal, while also barring some agricultural imports.
The U.S. is accusing Ms. Meng, the chief financial officer of Huawei Technologies. Co. Ltd., of fraud, for alleged lies it says she told several banks in an attempt to evade U.S. sanctions against Iran. If extradited and ultimately convicted in the U.S., she could spend years in jail.
The focus of the extradition hearing, which began Monday, has been on whether the crime Ms. Meng is accused of committing exists in Canada. Ms. Meng’s legal team argues that the essence of her alleged offence was evasion of the sanctions – sanctions which Canada decided independently to drop in 2016. The Canadian government, which is presenting the case on behalf of the U.S. Justice Department, says the case is about fraud, not sanctions. A Meng victory on this point would end the extradition proceedings.
Associate Chief Justice Holmes said the crime of fraud can exist in many different contexts. “Suppose, for example,” she told government lawyer Robert Frater, “that the foreign legal context were utterly objectionable to Canadian values in a way that nobody could contest. One could well imagine articulating that there could be a fraud that would rely on that offensive legal context.”
She mentioned the example of a fraud that may cause economic loss in a slavery regime.
In such a case, “is a court to mechanically go through the application of the elements of fraud,” to see whether the offence exists in Canada? she asked.
Mr. Frater replied that he agrees in a general sense that fraud could occur in a variety of contexts and could in some cases lead to an injustice, but said the case of Ms. Meng was not such a context.
He then cited a 2001 Ontario Court of Appeal ruling in the case of Karlheinz Schreiber, a German arms dealer who was eventually extradited for tax evasion for not declaring secret commissions he received. That ruling, he said, established that it is for the Canadian justice minister, not the extradition judge, to decide whether the context of a particular foreign law is unjust. And if the justice minister makes an unreasonable decision, the individual can ask a court to review the decision and throw it out, he said.
“You have a role that is limited to talking about whether the elements of the offence are satisfied,” he told the judge.
But she appeared not to share his view of her role. She noted many years have gone by since that 2001 ruling, and said that today, judges are expected to apply “Charter values” – the ideas underlying the Charter of Rights and Freedoms – when they make rulings.
Those exchanges came as Mr. Frater had his chance Wednesday to explain why the offence Ms. Meng is accused of exists in Canada. The defence had its turn the first two days of the hearing.
Mr. Frater attempted to simplify matters for a court that often seemed tangled up in abstract arguments and complicated scenarios earlier in the week. He said most legal cases cannot be understood without knowing the factual or legal context, and sanctions were simply part of that context. Imagine, he said, if the courts decided the offence did not exist in Canada; this country would become a “haven for hucksters” who would be able to violate the laws of other countries through such activities as telemarketing.
In the end, he said, the core principle in deciding between fraud and sanctions as the essence of the alleged offence is simple: “Common sense prevails.”