When John McCallum, Canada’s ambassador to China, said this week that Chinese business executive Meng Wanzhou has “quite good arguments on her side” in her fight against extradition to the United States, he ignited a political storm. The Globe and Mail’s Sean Fine set out to explore the overlap between law and politics in a case that has set China and Canada on a collision course.
Is extradition essentially a legal process, as the Government of Canada says, or a political one, as China asserts?
While the process has elements of both, the Supreme Court of Canada has described extradition court hearings as preliminary: The purpose is to “determine a condition precedent to the executive’s power to surrender.” “Extradition is ultimately a decision made by a politician – by the member of cabinet assigned to it,” University of Alberta law professor Joanna Harrington says. “It’s linked to extradition being part of our international relations and the decision of a state to surrender up, to give over, someone who is in their territory to another state. The Europeans have an arrest warrant that goes judge to judge, but that’s based on the sense of mutual trust within the European Union.”
What did Ms. Meng allegedly do that got her in trouble with the United States?
As chief financial officer of Huawei Technologies Co. Ltd., a Chinese telecommunications company, she allegedly lied to multinational financial institutions with branches in the United States about business dealings in countries such as Iran, Syria and Sudan, according to an RCMP affidavit filed last month in the B.C. Supreme Court. These alleged lies began as early as 2009. The motive, the United States says, was to move money out of these countries. Banks with offices in the United States face criminal liability, under U.S. law, for handling certain transactions involving countries facing sanctions.
What punishment does she face in the United States if found guilty?
The crime of bank fraud carries a maximum penalty of 30 years.
Why didn’t the United States make the arrest at home and spare Canada the headache with China?
Ms. Meng and other Huawei executives travelled to the United States between 2013 and 2016, but they stopped travelling there when the United States began a criminal investigation of Huawei in 2017, the RCMP affidavit said.
Was Mr. McCallum right that comments from U.S. President Donald Trump give Ms. Meng a good argument to make in court against extradition?
It’s a low bar in court for an extradition request to be upheld by a judge. All Canada’s Justice Department, acting for the United States, has to show is evidence of a crime that, had it been committed in Canada, would justify committal for trial. The data back that up: From 2008-09 until this year, 1,269 requests were made and 395 were not surrendered. But “conduct by the requesting state that amounts to an abuse of process is a basis for the extradition court to refuse extradition,” Edmonton lawyer Nathan Whitling says. One form of abuse would be to impose charges that were politically motivated (Mr. Trump said he would drop the prosecution of Ms. Meng if doing so would assist in the U.S. trade dispute with China). “I think the Trump comments open the door for the motive of the Department of Justice [of the U.S.] to be explored,” Toronto lawyer Frank Addario says.
Have the courts ever called a halt to an extradition sought by the United States over an abuse of process?
Yes. In a 2001 case, United States v. Shulman, a U.S. prosecutor hinted in a TV interview that a Canadian citizen would be subjected to rape in jail for fighting extradition and a U.S. judge said he would give him the maximum sentence. The Supreme Court halted the extradition. More recently, Canadian Abdullah Khadr was suspected of supplying weapons to al-Qaeda terrorists; the United States paid an intelligence agency in Pakistan a half-million dollars to abduct him in that country, and he was subjected to beatings and secret detention before being repatriated to Canada. Ontario courts would not allow his surrender.
Could Attorney-General (and Minister of Justice) David Lametti stop the process before it reaches a hearing?
Vancouver extradition lawyer Gary Botting says the Attorney-General has unfettered discretion to refuse to grant an “authority to proceed.” “It’s a question of expediency. Is this going to create more problems than it’s worth?” But the Attorney-General delegates this early stage of the process to lawyers in the Justice Department’s International Assistance Group. “The only decision that must be made by the Minister of Justice personally is the ultimate decision on whether to surrender an individual in the event a judge has ordered committal for extradition,” Justice spokeswoman Célia Canon says. Mr. Addario says he wouldn’t be surprised if Canada asks for more information from the United States before issuing the authority to proceed. “This is a case that just cries out for transparency.”
When the Justice Minister makes his ultimate decision on surrender, what guides the decision?
Section 44 of the Extradition Act says the minister “shall refuse” to turn over an individual for extradition when the surrender would be “unjust and oppressive” in all the circumstances. Lawyers for Ms. Meng “can raise almost any issue,” Mr. Addario says, “including the fact that the alleged crime had negligible effects on the requesting state and appears to be the product of a trade dispute.”
Can the minister’s ruling be reviewed by the courts?
Not if the minister says no to the extradition. But if he says yes, Ms. Meng can apply for judicial review to a provincial court of appeal. The Supreme Court of Canada says courts should generally defer in extradition cases because the executive, not the courts, has expertise in international relations: “The courts must be extremely circumspect so as to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states.” Ultimately, in extradition cases, good faith and honour cannot be contracted out to the courts.