What the Meng Wanzhou ruling means, and how it could have gone the other way

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Canadian courts should not let alleged criminals escape prosecution by the country’s international extradition partners on the basis of technical legal arguments, a B.C. Supreme Court judge ruled on Wednesday in allowing the extradition case against Chinese telecom executive Meng Wanzhou to clear an important legal hurdle.

The United States has asked Canada to surrender Ms. Meng to face fraud charges. It accuses the chief financial officer of Huawei Technologies Co. Ltd. of lying to a bank about the company’s business dealings in a bid to evade U.S. sanctions against Iran. China has countered that Canada, which arrested Ms. Meng on Dec. 1, 2018, is engaging in a politically motivated prosecution.

The first phase of the court proceedings, held over four days in January, was to determine whether the alleged conduct would be a crime if committed in Canada, a principle known as double criminality. The Canadian government, representing the U.S. Justice Department, argued that the case is about fraud; Ms. Meng’s lawyers, led by Richard Peck of Vancouver, said it is really about U.S. economic sanctions against Iran. Canada does not have sanctions against that country.

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Associate Chief Justice Heather Holmes ruled that this argument would put the basic purposes of extradition treaties at risk.

The evasion of sanctions, she wrote in a 23-page ruling, was mere context for an alleged fraud. And people accused of fraud should not be permitted to avoid accountability simply by citing situations in other countries that don’t exist in Canada.

“Ms. Meng’s approach to the double criminality analysis would seriously limit Canada’s ability to fulfill its international obligations in the extradition context for fraud and other economic crimes,” she wrote.

“The offence of fraud has a vast potential scope. It may encompass a very wide range of conduct, a large expanse of time, and acts, people, and consequences in multiple places or jurisdictions.” It should not be given an “artificially narrow scope" in extradition cases.

During the January hearing, Associate Chief Justice Holmes raised a question about whether some frauds might occur in a context offensive to Canadians. But in her ruling, she said that economic sanctions against Iran are “not fundamentally contrary to Canadian values in the way that slavery laws would be.”

Ultimately, she said, it is up to Justice Minister David Lametti to decide whether “prosecution according to the foreign laws could lead to an unjust or oppressive result according to Canadian values.” The minister decides, if a judge endorses the case for extradition, whether the individual should be extradited. And the courts can review that decision, giving further protection, the judge said, against an unjust result flowing from the context.

Canadian courts could have put Ms. Meng on trial for a similar offence committed in this country, she wrote. ″A domestic prosecution for fraud could properly, I suggest, take place in Canada on the basis of false statements made in Canada that put a U.S. bank at economic risk for violating U.S. sanctions."

Some legal observers said they were not surprised by the ruling. Double criminality is an “expansive concept,” University of New Brunswick law professor Anne Warner La Forest said, adding that “if you’re too narrow … you’re essentially rewarding some criminals.”

The Meng extradition case has put the Canadian justice system in an international spotlight. China arrested two Canadians, Michael Spavor and Michael Kovrig, in apparent reprisal for her arrest; they have been in prison for 535 days. Ms. Meng is on bail and living under a form of house arrest in a Vancouver mansion.

The ruling from Associate Chief Justice Holmes, a former prosecutor and criminal-law policy official, communicated the justice system’s “consistency," said Asad Kiyani, a law professor at the University of Calgary. “You see that Justice Holmes is looking back at the evolution of Canadian extradition, and identifying the broad-based approach." He said judges do “not insist that the laws of every country are perfectly in concordance and exactly mirror one another,” but look to see “that the spirit of the law, the essence of the law, is the same.”

Paul Stern, a Toronto lawyer, said the case “obviously could have gone the other way.” The ruling is “careful, clever, but comes down in favour of international co-operation with the United States as opposed to the liberty of the individual concerned.”

The proceedings still have a long way to go, and timing is uncertain, in part because of the COVID-19 pandemic. In the next court phase, Ms. Meng’s lawyers will argue an abuse of process, based on allegations of improper political motives and of violations of her rights when arrested. In a third phase, the court would have to decide whether enough evidence exists to send her to trial.

Canada’s Justice Department stressed the independence of the judicial process in a statement, adding that the government will work with defence counsel and the court to ensure the case moves as expeditiously as possible. Ms. Meng’s lawyers declined to comment. A Huawei spokesman expressed the company’s disappointment, saying the company expects Canada’s judicial system will ultimately prove Ms. Meng’s innocence. A spokesman for U.S. prosecutors in New York thanked the government of Canada "for its continued assistance pursuant to the U.S./Canada Extradition Treaty in this ongoing matter.”

With a report from Adrian Morrow

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