Did Meng have a strong case against extradition?

Canada’s ambassador to China John McCallum raised some cogent legal points when declaring that the Huawei executive arrested in Vancouver at the request of the United States has a strong defence to fight extradition, according to lawyers who specialize in the field.

He raises issues in her defence that could be raised,” Toronto-based extradition lawyer Seth Weinstein told CBC News Network.

​Meng Wanzhou, the chief financial officer of the Chinese tech giant, was arrested at Vancouver’s airport on Dec. 1 at the request of American authorities, who are seeking her extradition on fraud charges. They allege she lied to American banks as part of a scheme for Huawei to evade U.S. sanctions against Iran.

Most extradition requests made by the U.S. to Canada are granted.

But at a news conference with Canadian and state-owned Chinese-language media in Markham, Ont., on Tuesday, McCallum made three points that he said provide good arguments against her extradition to the U.S.

One, political involvement by comments from Donald Trump in her case. Two, there’s an extraterritorial aspect to her case. And three, there’s the issue of Iran sanctions which are involved in her case, and Canada does not sign on to these Iran sanctions,” McCallum said.

So I think she has some strong arguments that she can make before a judge.

The Bargaining chip

Gary Botting, a Vancouver lawyer who specializes in extradition cases, agreed with McCallum’s overview. He said that on his first point, regarding the U.S. president, Trump has politicized the process. 

Trump has] implied that the United States can use her as a bargaining chip and that is precisely what the treaty says is an exception to the extradition process,” Botting said. “A person will not be extradited if it is for a political purpose or if the person is deemed to be part of that political purpose.”

But experts said the most important part of Meng’s defence in her extradition case is whether her actions in the U.S. would also be considered criminal conduct in Canada, known as the “principle of double criminality.”

McCallum suggested that Meng’s case may not meet that principle, as she is being accused of violating U.S. sanctions against Iran that Canada did not sign on to.

That plays a significant role,” said Weinstein. “If [Meng’s] conduct is, in fact, a violation of sanctions [and] we don’t subscribe to those sanctions, and don’t have an offence of that nature here in Canada, … arguably it could then be advanced that she ought not to be extradited because there is no similar conduct here that’s criminal.

Toronto lawyer Leo Adler agreed that the “major legal question” regarding Meng’s extradition case is whether there is an equivalent crime in Canada to the one in which she is accused. 

But Weinstein said the U.S. seems to have characterized Meng’s actions as fraud, which arguably may allow her to be extradited.

You have to see what the actual conduct is,” he said.

Provisional arrest

Under Canada’s extradition laws, the U.S. is given 60 days from the date of arrest to make a formal extradition request.

When foreign governments seek the arrest and extradition of an individual in Canada accused of committing a crime in their country, they can go about it in two ways.

They can provide Canada with a formal extradition request and supporting documentation, meaning the arrest will occur after that request has been submitted. The foreign government can also request a provisional arrest, which comes before that formal request has been received.  

Meng was arrested under a provisional arrest warrant.

Justin Trudeau responds to a question about McCallum’s comments on Meng’s extradition case:

​If the arrest is provisional, Canada will release the individual if the government hasn’t received the extradition request within a specified time period. 

Under the 60-day period outlined by the long-standing Canada-U.S. extradition treaty, the U.S. has until Jan. 30 to submit their request to extradite Meng.

A spokesperson with the U.S. Department of Justice has said it will “meet all the deadlines” under the treaty as it continues to pursue Meng’s extradition.

Canada’s Justice Department then has a further 30 days to determine whether to issue an “authority to proceed” — and ultimately decide whether it will authorize an extradition hearing.

‘Not the trial’

That hearing is held before a provincial Superior Court, where a judge determines whether there is enough evidence provided by the extradition partner to support the request.

The judge does not rule on the guilt or innocence of the crime of which the individual is accused, but rather evaluates whether that evidence would be “sufficient to commit the person for trial in Canada” if the conduct had occurred here.

An extradition hearing is not the trial,” Adler said. “There is no need for proving things beyond a reasonable doubt. It’s a very low test.

The test is very simple: Is there any evidence upon which a properly instructed jury could convict?”

The judge then orders whether the individual should be committed for extradition. But the federal justice minister has to provide the final order on whether the individual will be “surrendered” to the country seeking extradition.

In December, then Justice Minister Jody Wilson-Raybould declined to comment on the case of Meng, saying she would “ultimately have to decide on the issue of surrender of the person sought for extradition.”

That decision will now fall on newly appointed Justice Minister David Lametti.

And someone who is sought for extradition may appeal their committal and seek a judicial review of the minister’s surrender order a process that can play out for months or even years in the courts.