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Opinion On the Huawei extradition case, Canada’s legal system better stand up to scrutiny

Robert J. Currie is a professor at Dalhousie University’s Schulich School of Law, where he specializes in transnational criminal law and inter-state criminal co-operation.

When reports emerged that Canadian authorities arrested Huawei Technologies chief financial officer Meng Wanzhou in Vancouver on Dec. 1, it immediately became an international incident. Ms. Meng, the daughter of the founder of the Chinese telecom giant, is apparently wanted in the U.S. on charges arising from a New York-based federal investigation into Huawei, relating to the alleged shipment of U.S.-sourced goods to Iran in violation of American sanctions. The Chinese embassy in Canada has already reacted furiously, and the international community, especially in the United States, is watching closely.

This case presents an interesting entanglement of legal, political and diplomatic issues. The legal issues are perhaps the least familiar to most but also the most ordinary; under the Canada-U.S. extradition treaty, Canadian authorities are bound to arrest individuals known to be in Canada at the request of their American counterparts. The timing of the arrest – while Ms. Meng was changing planes – suggests Vancouver police were “tipped off” in advance about her presence there, but this is not unusual. Nor is the fact that the arrest was of a foreign national, since extradition is very often sought for people who have fled the scene of their alleged crimes, and such people are just as likely to be foreign citizens as they are to be Canadians. Ms. Meng is likely to receive bail when the hearing continues on Monday, unless the court can be convinced that she is a flight risk, and at the very least she will have to surrender her passport and live under restrictions.

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So what comes next? With all eyes firmly on Canada after this arrest – possibly the most international scrutiny that our legal system has ever faced – our extradition laws, and the people in charge of them, will be under the microscope. And Canadian officials will no doubt be uncomfortable until they know that they have crossed every single T and dotted every last i.

While a number of preliminary legal steps might be taken, there will, at some point, be a court hearing at which the U.S. will be required to produce to a Canadian court a certified summary of the evidence that supports the laying of the charges.

Another requirement to be met is “double criminality,” which means the court must find that the crime for which Ms. Meng is sought also amounts to a crime in Canada in order for extradition to be completed.

At the moment it appears that the basis of the U.S. case is fraud and conspiracy to defraud, with some relation to breach of sanctions. Fraud offences are known to Canadian law, and under our Special Economic Measures Act, it is an offence to have economic dealings with foreign states against which the government has issued sanctions, and Iran is one of the listed states. While this may be a parallel to the relevant U.S. laws, one important difference is that Canada’s law is not applied against foreign nationals who act outside Canada, whereas it appears the U.S. is pursuing Ms. Meng for conduct that did not touch American territory. Moreover, sanctions are as much a tool of foreign policy as they are a form of regulation, and an extradition case on this basis will be breaking new ground, and courting uncertainty.

Under Canada’s Extradition Act, the decision about whether extradition is available in cases with these kinds of differences in territorial jurisdiction is made not by the courts, but by the federal Minister of Justice, Jody Wilson-Raybould. In fact, the Minister’s role involves a heavily intertwined set of political and legal functions. She will already have approved the arrest of Ms. Meng on the extradition request; lawyers in her department will represent the U.S. government before the Canadian courts; and she will make the ultimate “surrender decision” about extradition after the fairly perfunctory court process is completed. In making the surrender decision, the Minister must balance a complex set of factors, including Canada’s obligation to extradite under the treaty and whether there are any human rights concerns that might make extradition unlawful. If the U.S. prosecutors seek harsh penalties, Ms. Meng’s lawyers might very well argue that surrendering her would be oppressive and breach Canada’s Charter of Rights and Freedoms.

Much rests, then, on the Justice Minister’s decision. And the high-stakes choices Ms. Wilson-Raybould now faces are complicated by the necessity to weigh Canada’s political and diplomatic relationships. Court reviews of these decisions tend to be very deferential because of the presence of these factors; Canada has a long history of co-operation with the U.S., and in virtually all cases the minister is highly disposed to order extradition, because such neighbourliness makes for smooth relations. In fact, as critics have asserted, Canada’s entire extradition regime is heavily tilted toward surrenders going through, and it takes the presence of quite extraordinary factors to scotch a request.

But this is, indeed, an extraordinary situation. China can be expected to continue exerting significant pressure on Canada to release Ms. Meng, at a time when the Trudeau government is not only pursuing more trade links with China but preparing to negotiate an extradition treaty between the two countries. China has already taken diplomatic steps to indicate its displeasure, and the prospect of other forms of retaliation is highly likely. On the other side is the U.S. government and its increasingly hot trade war with China, as well as the increasing pressure by Canada’s Five Eyes partners to shun Huawei due to security concerns. Anything less than an enthusiastic and quick extradition will doubtless raise the ire of the Trump administration, which will expect Canada to fall in line in what it will doubtless frame as a straightforward criminal case (even though it is likely anything but).

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This tangled web of factors is the sort of thing that probably keeps the Minister up at night. Such a collision of the legal, political and diplomatic means this case has the potential to be one of the most interesting and contentious extradition matters in recent history.

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