The extradition hearing of Chinese telecom executive Meng Wanzhou begins its final stages Wednesday, with a last-ditch effort by her lawyers to argue that the United States misled Canada and abused this country’s judicial process.
The case has brought Canada-China relations to their lowest point in decades. China arrested and jailed two Canadians, Michael Spavor and Michael Kovrig, shortly after the RCMP arrested Ms. Meng on Dec. 1, 2018, in a move widely seen as a reprisal. They have now been incarcerated for 968 days. Ms. Meng, meanwhile, is free on bail and living in a Vancouver mansion.
For Ms. Meng, whom the U.S. accused of violating sanctions against Iran by fraudulent dealings in banking transactions roughly a decade ago, the challenges are steep. Her lawyers need to convince Associate Chief Justice Heather Holmes of the British Columbia Supreme Court that the behaviour of the U.S., in misusing the extradition process, “shocks the conscience” of Canadians. That is a high bar to meet.
Some of the particulars on abuse of process have already been put before the judge: that former president Donald Trump made public comments suggesting the prosecution was political in nature; and that Canadian border officials acted illegally in gathering evidence for U.S. authorities when arresting Ms. Meng. On Wednesday, lawyers Frank Addario and Mona Duckett will argue that the U.S. prosecutors used inaccurate information in their record of the case (the basis of the committal hearing expected to begin next Wednesday) and deliberately omitted information to leave the judge with a distorted impression of the case.
If Ms. Meng’s lawyers fail to convince the judge of an abusive process, the Canadian Attorney-General’s department (which is representing the U.S. prosecution) need only show there is enough evidence on which a jury could reasonably convict Ms. Meng (similar to the standard used in preliminary hearings in Canada, to send an accused on to trial). It is a low bar. The vast majority of U.S. requests are approved for extradition, federal statistics show.
“It’s a ‘limited screening function’; that’s the phrase they use,” explains lawyer Paul Stern, who is not involved in the case. Ms. Meng’s defence is not allowed to challenge the credibility of the evidence. Nor is it allowed to put forward any defences. Those forms of advocacy are deemed relevant only if the case goes to trial in the U.S. The underpinning of the system is a belief that crimes should be tried in the jurisdiction where they occur (assuming trust in an extradition partner’s justice system).
“The word ‘hopeless’ comes to mind,” lawyer Donald Bayne said of representing those facing extradition during the committal phase. “It’s a tremendously uphill battle.” He represented Hassan Diab of Ottawa, whom an Ontario judge committed for extradition to France in 2011 in a case related to a synagogue bombing, though the judge said the evidence was “weak, convoluted and confusing.” (France held him for three years before freeing him.)
Lawyers for Ms. Meng, the chief financial officer for Huawei, a Chinese company, include respected members of the bar from several provinces: Richard Peck, Eric Gottardi and David Martin from B.C.; Scott Fenton, Mr. Addario and Matthew Gourlay from Toronto; Isabel Schurman from Quebec; and Ms. Duckett from Alberta.
The hearing, which wraps up this month, is not the last word. The extradition process, which has legal and political elements, and the possibility of appeals, could take another three years or more until a final decision on the U.S. request is made.
And while the length of the case puts Mr. Spavor and Mr. Kovrig at risk of continued harm, it is not unusual for an extradition. “That’s the nature of law as a practical matter,” lawyer Paul Slansky said. “If the individual wants to take more time to vindicate their rights and there are other people’s interests at stake, well, other people whose interests are at stake take a back seat.”
The case is a complex one. The U.S. contends Ms. Meng lied to multinational banks with U.S. branches about business dealings in countries such as Iran, Syria and Sudan, in order to move money out of these countries. Banks with U.S. offices can be held criminally responsible under U.S. law for handling certain transactions involving countries facing sanctions.
In the first phase of the courtroom hearings, in January, 2020, the Canadian government needed to show that the crime she is accused of would also be a crime in Canada. The defence argued that fraud was a “façade” for a case that was actually about sanctions against Iran, which Canada dropped in 2016. But Associate Chief Justice Holmes ruled that fraud was a crime in both countries.
She will rule on the abuse-of-process arguments at the same time as she decides on whether there is enough evidence to commit Ms. Meng to trial. Her ruling, which may come this fall, could be appealed to the B.C. Court of Appeal. But that appeal process could take two years to unfold. That’s because, if the judge rules that Ms. Meng can be sent on to trial, the political element of the case would need time to unfold. The telecom executive’s lawyers would be given time to file written submissions to the Minister of Justice on why she should not be “surrendered” to the U.S. It is the minister who makes the ultimate decision – although the courts can review that decision.
The minister would be granted time to produce a written decision. Extensions are possible on legal deadlines. Ms. Meng’s lawyers could then ask for a judicial review.
The appeal of Associate Chief Justice Holmes’s ruling on committal and the judicial review of the minister’s decision would be heard together. Ultimately the parties could then seek the Supreme Court of Canada’s permission to hear an appeal.
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