"Judicial Independence" in Canadian Extradition Law

The Canadian Extradition Act

There is no "judicial independence" in Canadian extradition law.  Louise Arbour,  former UN High Commissioner for Human Rights, justice of the Supreme Court of Canada and Chief Prosecutor of the International Criminal Tribunals, has been trying to educate the Canadian public on this basic fact in Canadian law. The Canadian Extradition Act is available online and is clear (and I encourage you to click the hyperlink), in Canada, extradition is, ultimately, the responsibility of the executive branch of government (meaning the politicians we elect) not the judiciary.  Despite the obvious letter of the law, Prime Minister Justin Trudeau continues to stubbornly repeat the fallacy that "judicial independence" must be maintained in the Meng extradition trial. His use of the phrase "judicial independence" is proof that he has never looked at the Canadian Extradition Act.  Imagine: in a matter of minutes, anyone with an internet connection and basic reading skills can know more about Canadian extradition law than the Prime Minister of Canada.  Be one of those people.

I urge you to click on the link:  The Canadian Extradition Act.

The Definition of absurd

The definition of absurd is "wildly irrational, illogical and inappropriate."  I bother to define "absurd" because the word can sometimes imply ridiculous, mocking, even comic.  But in this case, the issues are deadly serious, especially for Michael Korvik and Michael Spivak who could spend years in a Chinese prison  (Canadian extradition cases have been known to take ten years) while the Canadian government dithers and does nothing.

The Most basic rule of logic

The most basic rule of logic is that if your premise is wrong, whatever conclusions or arguments follow from the premise will also be wrong.  For over 18 months, Canada's political leadership and virtually the entirety of its fourth estate have adopted a false premise summed up in the expression "judicial independence."  By adopting this false premise, Canadian politicians, the media, and numerous public figures have unleashed a litany of absurdities, non-sequiturs, and obfuscations which can only lead to delays and damage to Canada and Canadians.  Consider some of the claims you have, no doubt, already heard.

We are abiding by Canadian law

 If you dared to click the link to the Canadian Extradition Act, you know this goes beyond being illogical, it is an outright lie.  The only way to claim that Canada is being "law abiding" is to ignore the law, the Canadian Extradition Act, which we are supposedly abiding by.

We had no choice: Canada is respecting its extradition treaty obligations

How many times have you heard these claims?  The word "obligations" is more than misleading; it is simply wrong.  Extradition treaties do not create the obligation for Canada to arrest anyone, and the Treaty on Extradition Between the Government of Canada and the Government of the United States of America is no exception.  The treaty lays out the circumstances and a list of the 30 crimes for which Canada will consider the American "request" that a person be extradited.  You can do a word search of the Treaty (click edit/find in your browser, then type in the word oblige and any of its cognates). The word "oblige" or its cognates does not appear a single time in the Treaty.  The word "request" and its various forms appear . . . a lot.  (I stopped counting after I had found the word used 50 times.)  The Public Prosecutor Service of Canada is explicit that "Extradition treaties do not themselves create an obligation or a power to arrest in Canada."  Still, Canadian politicians throw up their hands saying "we had no choice" and Canadian journalists piously repeat the falsehood.

Trump made it political

Invoking the name "Donald Trump" has become a means of announcing that the universe is absurd and, to quote Becket's Waiting for Godot, "there is nothing to be done."  Blaming Trump means no-one feels responsible to do anything.  Of course, Trump's public announcement that he would use Meng as a bargaining chip with China was immediate grounds for dismissal of the extradition request.  But, guess what, only the Minister of Justice can take that step.

One school of thought is that arresting Meng on December 1, 2018, the same day Trump was having a one-on-one meeting with China's President Xi was a deliberate attempt to undermine the American President orchestrated by his national security advisor John Bolton.  (If you click on this link to the Guardian article from 6 Dec 2018, you will see Bolton quoted as saying he didn't know if Trump had been informed of the Meng arrest.  My guess:  if his national security advisor didn't tell him, Trump probably didn't know.  Also, in the article, Bolton makes it clear that Meng was arrested because of NSA concerns about Huawei, not because she had committed bank fraud.)

"Trump made it political" clouds the fact that extradition is, by law, political in Canada.  Justin Trudeau made the case impossibly "political" when he dismissed Canada's ambassador to China simply for saying that Meng had a good case against extradition.  How can David Lametti, the Minister of Justice, do his job and release Meng after Justin Trudeau and Chrystia Freeland have repeated a hundred times over in the last 18 months that extradition in Canada must be done without political interference?  Has anyone heard from our Minister of Justice recently?  Robert Fife, Globe and Mail Bureau Chief, described Minister of Justice, David Lametti, as "becoming a joke," and "every time they let him out he says something stupid."  On Feb. 7, 2019, three weeks after he had been appointed Minister of Justice, The Star reported:

Justice Minister David Lametti says foreign affairs will be a factor if and when it comes time for him to make what he acknowledges is a political decision whether to extradite Huawei executive Meng Wanzhou [ . . .].

 I haven't heard anything from the Minister of Justice since.  Have you?

Canada is being bullied; we need to get tough with China

If you are wondering by whom Canada is being bullied, you need look no further than Adrienne Arsenault's interview with former National Security Advisor John Bolton.  

When asked  about what the USA was doing about the imprisonment of Canadians Kovrig and Spavor, John Bolton replied:  "it has been spoken about publicly in the administration."  This is how the USA is getting tough with China.

Canada is being played by the USA and being left to its own devices to deal with China.  Bolton's response to Canada's dilemma:  "If you want to leave NATO, if you want to get rid of our protection militarily, please go ahead and do it.  If that's what you want.  Canada is free to do it."

When Arsenault asked, "How does Canada get its Canadians home from China at this point?"

Bolton's response:  "Look, I think we all want to get them home as soon as possible.  America has had its share of hostages around the world. If you don't like it, Ma'am, you're free to go ally with China.  If you think that's what your country wants to do.  Think about that long and hard."

There's a difference between China imprisoning two Canadians for no reason and Canada's arresting Meng on legal grounds

Yes, there is a difference.  It is a difference of degree.  It only holds as a difference of kind, if Canada's grounds for holding Meng are legal according to Canadian law.  Back to the Canadian Extradition Act and the fact that the Minister of Justice and only the Minister of Justice (not a judge) is tasked with looking at all the circumstances and deciding if the request is just and justifiable.  Only the Minister can consider if Richard Donaghue's warrant is a conflict of interest.  Only the Minister can determine if nationality, ethnicity, economics, or politics play a part in and thereby dismiss the extradition request.  Only the Minister can look at the entire situation and consider if Meng will, in fact, be tried and sentenced to at least a year in prison as required by the Treaty, or if the end result will likely be a fine or some kind of negotiation--which would be grounds for dismissing the request.  Only the Minister can look at the entire situation and ask:  "Has anyone ever done jail time for the kind of thing that Meng is being accused of?" Everywhere the Minister of Justice looks, he is likely to see a reason to dismiss the extradition request.  The Canadian response:  "judicial independence" as if the Minister of Justice is not allowed to act.  Have I mentioned that Canadians need to study the Canadian Extradition Act?

We can't release Meng because the Chinese have taken two Canadians hostage

Having ignored the letter of Canadian law for 18 months, we now find ourselves facing the absurd argument that we cannot release Meng because the Chinese have imprisoned two Canadians and acquiescence would encourage future hostage diplomacy.  Does anyone really believe that Canada is in a position to give China lessons on international diplomacy?  That anything Canada does will change Chinese behaviour on the international stage?

Arresting two Canadians in China, as I pointed out in December, 2018, has made the optics of releasing Meng more difficult for Canada.  At the time, the common observation was that the arrests of Kovrig and Spavor were for local consumption in China; that is, the government had to show that they were doing something about the arrest of Meng.  The need for two governments to save face with their constituencies has created this absurd standoff.  Neither government has solid legal grounds for their actions but before any change can take place, one of these governments has to admit the fact.

A Majority of Canadians oppose a swap of Meng for the Michaels

The UBC survey done last October concluded that 39% of Canadians felt arresting Meng was a mistake and 35% feel she should be released before the judicial process has concluded.  More recently:

the latest study from the non-profit Angus Reid Institute finds Canadians supportive of the federal government’s position of letting Meng’s extradition case play out in the courts. Seven-in-ten (72%) feel this way, while a minority (28%) say that they would rather the government negotiate a way to exchange Meng for Canadians Kovrig and Spavor.

What does this latest poll prove?  To fully answer the question, you have to look at the question that Angus Reid asked, and the answers that respondents were allowed to give.  This is what you get:

In other words, if you are forced to accept the false premise that extradition in Canada is an "independent court process" do you follow the law, or break the law and do something else? So yes, Canadians think of themselves as law-abiding, which is easy to do if you ignore the law . . . the Canadian Extradition Act.

Now What?

David Akin of Global News has argued that it's too soon for the government to intervene in the Meng extradition. According to Akin, the Minister can only act at the end of the judicial process (in 8 to 10 years from now?).  Commenting on CBC News last  week, Susan Riley, said it was "too late for the government to intervene."  Of course, she has a point.  After 18 months of repeated, spurious claims that the government cannot interfere, how will the government explain its actions when it is eventually required to follow the law and for the Minister of Justice to make his decision?

There is only one way, that I can see, to escape the perfidy and absurdity.  A lot of Canadians will have to browse the Canadian Extradition Act. Is there any way that is ever going to happen?  Not likely.  Then again, what if you did?  And suggested the same to a few of your friends?

A Dozen Reasons Why the Canadian Minister of Justice Should Release the Huawei CFO, Sabrina Meng Wanzhou

The "Canadian Extradition Act" Gives the Minister of Justice the Right and Obligation to Release Meng

It's becoming more and more obvious in the media (social, anti-social and other) that the  request for Sabrina Meng Wanzhou's extradition is bogus. Contrary to what you may have read or heard from Canadian politicians about extradition proceedings being out of the hands of the political leadership, the Canadian Extradition Act clearly states that:  "The Minister [of Justice] is responsible for the implementation of extradition agreements, the administration of this Act and dealing with requests for extradition made under them." (For more see Was Freeland Lying?  and How Canada Arrested a Chinese Exec.)

According to The Act, the Canadian Minister of Justice, Jody Wilson-Raybould, can and should intervene in an extradition if she considers it "unjust" after reviewing "all the relevant circumstances."  She can "at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person." The "circumstances" provide ample reasons and The Act provides specific injunctions requiring the Minister to intervene in the case of Sabrina Meng Wanzhou; including the "political" nature of the extradition request, that the request is based on Meng's "nationality and ethnicity," that her alleged crimes would not be prosecuted in Canada, that her alleged white-collar crimes would not warrant two years of imprisonment as required by The Act, that the character and legitimacy of the warrant for Meng's arrest, detention and extradition are highly questionable, and that while the legitimacy of Meng's detention and the extradition proceedings are in serious doubt, they pose a threat to public safety and are counter to Canadian interests.

1. The charges against Meng are not substantive enough to warrant extradition.  

Various media outlets have repeated the claim that each of the charges against Meng is punishable by 30 years of imprisonment.  Stop and consider:  why are we being fed this piece of information?  The exact details of her alleged crimes have remained sketchy, so why has this precise detail of 30 years of imprisonment been so widely and precisely promulgated?  Who is spreading this claim?  For what purpose?  More to the point, even based on the most exaggerated rumours of the seriousness of Meng's alleged crimes, does anybody really believe that an American court is going to throw her in jail for the next 30 or 60 or 90 or 120 years?  So why this emphasis on the maximum sentence?  Because, according to the Extradition Act, in order for the extradition process to proceed, it must be clear that Meng's crimes would be punishable by at least two years of imprisonment.  We don't extradite people for minor crimes; we don't extradite people to pay fines, or be put on probation or be imprisoned for less than two years.  In the aftermath of the financial collapse of 2008 and extensive evidence of wrongdoing, no American was convicted of a crime, but the punishment for white-collar crime in the USA has become a much debated topic.  Based on the information leaked to the public so far, Meng's alleged white-collar crimes fall well below the two-years-of-imprisonment threshold required for extradition.

2.  The accusations against Meng would not constitute a criminal offence in Canada.   

According to media reports, Meng is accused of contravening trade sanctions against Iran; Huawei, of which she is CFO, is accused of selling technology in Iran which contained US components and/or patents, and Meng is accused of bank fraud.  Of these three accusations only "bank fraud" would be a criminal offence in Canada.  To keep it simple, "bank fraud" is stealing money from a bank--but without pointing a gun at anyone.  (You might want to have a look at Should Bank Robbery Be Deregulated?) However, the "bank fraud" in this case is related to sanctions against Iran in that she is accused of failing to inform or hiding from bankers that Huawei owned a shell company which owned a company called Skycom which was doing business with Iran.  (For more detail see:  The Chaos Theory of International Trade.) How much money did she steal?  There is no hint of an answer to this question in the media.  I suspect the answer will be zero.  How much the banks lost determines how long the prison sentence could possibly be.  The claims of a 30-year prison sentence imply that the banks (or a bank) lost billions.  I have seen no claims concerning the amounts that the banks lost despite the repeated claims of multiple 30-year prison sentences. As reporters for the New York Times point out:  HSBC (the bank Meng is accused of defrauding) has repeatedly been convicted of money laundering.  In order to avoid another conviction in the USA for moving money in Iran, they threw Huawei CFO Meng under the bus, claiming that she tricked them into doing it.

Patent Infringement would be a civil and not a criminal case, therefore not grounds for extradition.  Moreover, patent infringement is such a common occurrence in large American companies that the practice has spawned a new expression: infringement efficiency, which means, in short, that stealing patents is good business as long as the amount of money you end up paying if you are found guilty in court is less than the profit made from the stolen patents.

3.  Contravening trade sanctions against Iran is not a crime in Canada.  

(See the Canadian Government's Guide for Doing Business in Iran.) In order to continue to push for extradition, the US Attorney will have to keep pushing the idea of "bank fraud," despite the shadowy, sketchy chain of events which will need to be proven.  The necessary sequence of accusations depends on trade sanctions against Iran.  Canada does restrict trade with Iran, but those restrictions only apply to materials for the construction of nuclear weapons and ballistic missiles.  The accusations against Meng refer to statements she made (or failed to make) in 2013 or 2014 (depending on which news report you believe).  The year or years are crucial because in 2016 the Obama administration negotiated an anti-nuclear deal with Iran and trade sanctions were lifted.  In 2018 the Trump administration reneged on and cancelled that agreement and unilaterally imposed new sanctions.  Here's a legal question:  Would we prosecute someone for committing a crime which is no longer a crime in Canada?  Need some context?  We just legalized possession of marijuana.  Will we prosecute people if we find proof that they possessed pot before it was legalized?  Still not convinced?  In 1968, homosexuality and various forms of recreational sex were legalized in Canada.  Do you imagine that we might have continued to convict people for acts of homosexuality and oral sex in the 1970s?  We would not prosecute Meng in Canada because the underlying basis of her alleged crimes is currently not criminal in Canada.

4.  There is an underlying conflict of interest in the request for Meng's extradition.  

As I outlined in an earlier post (The Chaos Theory of International Trade), Richard Donoghue is the US Attorney for the Eastern District of New York.  In a matter of months, Donoghue went from being an employee of CA Technologies (their Chief Litigator, in fact) to spearheading the request for Meng's arrest, detention and extradition.  The mere fact that he was so recently employed by a Huawei competitor strongly suggests that he might still be acting as an agent for the benefit of CA Technologies, which puts him in an apparent, if not actual, conflict of interest.

5.  The extradition request is based on Meng's nationality and ethnicity.  

The Canadian Extradition Act explicitly instructs that the Minister of Justice "shall refuse to make a surrender order if the Minister is satisfied that  . . . .  the request for extradition is made for the purpose of prosecuting or punishing the person by reason of their race, religion, nationality, ethnic origin language, colour, political opinion, sex, sexual orientation, age, mental or physical disability or status or that the person’s position may be prejudiced for any of those reasons.  German banks continue to do business in Iran.  The USA has an extradition treaty with Germany, but there have been no reported moves to extradite executives of German banks.  Skycom, the German company at the centre of the accusations against Meng, continues to operate, and there have been no moves to extradite German executives.  When the Standard Chartered Bank of Britain was convicted, in 2012, of doing hundreds of billions of dollars of business with Iran through its New York office, they were required to pay a fine.  No criminal charges have been laid.  Banks found to be in noncompliance and fined with operations in the United States include Barclays, ING, Credit Suisse, Lloyds, and ABN Amro.  No bank executive has faced criminal charges for doing business in Iran.  There is little doubt that the only reason Meng is being singled out for criminal prosecution is because she is Chinese and her company is Chinese.

6.  The extradition request is political.  

The Act specifies that the extradition will be refused if "the conduct in respect of which extradition is sought is a political offence or an offence of a political character."  The political nature of the request is so obvious, it seems redundant to comment.  However, the moment that President Donald Trump tweeted that he was prepared to intervene in the case, he made the case political (if there was any doubt that it already was).  If this case is about "national security" as is being constantly and slyly implied by US politicians and others, then the extradition request is by definition political.  To date, no one has claimed that Meng, as an individual, has done something to jeopardize American or, more importantly in this case, Canadian national security.  [By firing the Canadian Ambassador to China, John McCallum, for stating the obvious--that Meng had a strong case against being extradited--PM Justin Trudeau reinforced the "political" nature of the case.  Worse still, the PM has prejudiced the case against Meng.  The new Justice Minister, David Lametti, will be hard pressed to refuse the extradition after his boss, the PM, fired the Ambassador just for saying Meng had a case.]

7.  Canada is being played.  

For all intents and purposes the extradition request looks like a move by American tech giants to undermine a Chinese technology company which has been taking over a huge swath of the global market share.  Far from attempting to further justice and punish the crimes of an individual, what we are witnessing is one group of business interests blocking the development of a competitor by arranging the arrest of the company's CFO.  My prognosis is that Meng will never be convicted of a crime worthy of imprisonment.  It is unlikely that she will ever stand trial.  However, if the naivety and Dudly-Do-Rightism of Canadian leadership allow the extradition hearings and detainment of Meng to continue for years, then the corporate objective of slowing down the competition will have been achieved--and the Government of Canada will have colluded in that corrupt undertaking.

8.  Public safety.  

The arrests of two Canadians by Chinese authorities, ostensibly in retaliation for the Meng detention, have made the optics of releasing Meng more difficult.  Nonetheless, the Minister of Justice, the Minister of Public Safety (Ralph Goodale) and the Minister of External Affairs (Chrystia Freeland) have the obligation to confer with one another and recognize that they have to prioritize the safety of Canadians over dubious demands for the extradition of one Chinese citizen.

9.  Canadian self-interest.  

Every kid in the schoolyard knows that if some bigger kid asks you to punch yourself in the head, you are being bullied--and if you submit to this bullying, you are encouraging more bullying in the future.  It is in Canada's interests to diversify its trading partners.  It is, in particular, in Canada's interests to increase trade and friendly relations with China.  Canada will greatly benefit from Huawei's 5G technology, and the research funding and business development which Huawei Canada offers.  Of course, we need to maintain our trading partnership, friendly relations and military alliances with the USA, but the occasional demonstration that we are willing to act in our own best interests should strengthen the mutual respect that makes these relationships work.

10.  Canadian sovereignty.  

Historically, when Canada has asserted its independence from American military and foreign policies, our independence has served us well.  Prime Minister Jean Chretien's refusal to enter George W. Bush's Iraq war in 2003 is a good example.  Similarly, PM Lester B. Pearson kept Canada out of the Vietnam War in the 60s.  On June 1, 2018, the Trump administration's imposition of a 25% tariff on Canadian steel on the grounds of "US national security" together with Trump's alienated nationalism has provided a conspicuous opportunity for Canadians to recognize the importance of Canadian independence from American hegemony.  Unfortunately, Canada accepted the inclusion of the "China clause" in the recent US-Canada-Mexico trade agreement which, according to some analysts, has given the USA rights of veto over future Canadian trade deals--in particular, over our trade with China.  The American warrant for the extradition of Sabrina Meng Wanzhou trapped us into the embarrassing situation of arresting Huawei's CFO at the same time that we are courting and receiving Huawei investment in Canada.  Worse still, the arrest of Meng puts a halt to our developing relationship and plans for increased trade with China--once again surrendering our sovereignty to American interests.  Pathetically, in the arrest of Meng we are not even serving explicit American national or security interests, just the corporate interests of American technology companies.

11. Canadian "peace, order and good government."  

Clearly, Canada and China have ideological differences, although I suspect those differences are not well understood in either country.  Canada's ideological tendencies are quite different from those of the USA, and the difference has become pronounced in recent years.  In contrast to the American Declaration of Independence's valourization of "life, liberty and the pursuit of happiness," the Canadian constitution sets out the objectives of the Federal Government as "peace, order and good government."    The American pursuit of life, liberty and happiness has resulted in a state of near-constant warfare throughout the USA's history. The question which our Minister of Justice needs to ask in the Meng extradition case is:  "what decision will best promote and exemplify 'peace, order and good government' in Canada?"  As sparsely and sporadically as I have been informed of the details of the case through the media--and I trust the Minister has been more thoroughly informed--I have become convinced that Canada would be best served by Meng's immediate release.

12.  Canadian respect for the Chinese.  

The Chinese response to the Meng arrest has been to describe it as a gesture of disrespect toward China and the Chinese people.  Canadian apathy toward the Meng arrest has led me to fear that Canadians have been conditioned to accept the melodramatic myth of "The American 'good guys' versus the Chinese [and Asian in general] 'bad guys'."  Distance makes it easy for Canadians to ignore the empirical facts that while the Americans have been spending trillions of dollars on wars in Iraq and elsewhere, resulting in hundreds of thousands of deaths, the Chinese have raised 800 million of their fellow citizens out of poverty, and China has not been engaged in a war since the 1970s.  Canada must also respect the Chinese because they have been part of its history since Canada's earliest development in the 18th century.  There are 1.78 million Canadians of Chinese ancestry currently living here.  They have contributed to every aspect of life and culture in Canada, perhaps most iconically represented by our former Governor General Adrienne Clarkson.  Sabrina Meng Wanzhou has herself been a long-term resident of Canada. Attitudes of mistrust and suspicion are unwarranted and insulting to the Chinese of China and to our fellow citizens.  No doubt, apologies will be forthcoming--because we're good at that--but the Government of Canada should act quickly and not allow this insult to linger.

PS Since I first published this post on January 5, 2019, Jody Wilson-Raybould was demoted from Justice to Veterans Affairs.  The middle of a crisis requiring action from the Minister of Justice seems a very strange time (or was it deliberate obfuscation?) to be changing the Minister, but that is what the Government of Canada has chosen to do. David Lametti became the new Minister of Justice. On Feb. 7, 2019, despite denials from the PM and the Minister of External Affairs, the new Justice Minister, David Lametti, finally admitted that the extradition of Sabrina Meng Wanzhou is "political." https://www.thestar.com/…/decision-whether-to-extradite-hua…

PS2 On February 12, 2019, Jody Wilson-Raybould resigned her position as Minister of Veterans Affairs in the Trudeau cabinet. The prevailing assumption is that Wilson-Raybould resigned because of reports she was under pressure from the PM's office to allow the engineering firm, SNC-Lavalin, to pay a remediation agreement rather than face further criminal proceedings for bribes they were alleged to have paid in Libya in 2002 to 2011.  In the wake of the Meng arrest, two Canadians remain in jail and a third is facing the death penalty.  In terms of significance and potential consequences, the SNC-Lavalin affair doesn't even compare to the Meng extradition, but SNC-Lavalin has disappeared the Meng extradition from media coverage.

PS3 In a feature article in the February edition, Maclean's magazine reported that "29 percent of Canadians align with Beijing’s views, believing the arrest [of Meng] was politically and economically motivated."  In other words, almost 1 in 3 Canadians believe that the Meng arrest was contrary to Canadian law--the Canadian Extradition Act.  Imagine what the numbers would be if the Canadian media told the whole story, instead of the fable they think Canadians want to hear about our being law-abiding, transparent and honest in this case.  Imagine what the numbers would be if our Canadian representatives, like John McCallum, were allowed to tell the obvious truth--that Meng has a strong case against extradition--without being fired.

PS4 On January 28, 2019, the US Justice Department released its 13-count indictment against Huawei.  If you read the Justice Department announcement carefully, you will note that there is nothing new in the accusations against Meng.   The only direct accusation against Meng is that she misinformed executives of HSBC, as described above.  There are four (4) defendants named in the indictment.  It is worth noting that Meng is the only individual, the only executive, named as a defendant.  The other three defendants are companies, reinforcing the fact as noted above, that there is no precedent for criminal charges against an individual executive in this type of case.