By NATHAN VANDERKLIPPE, XIAO XU
Tuesday, June 25, 2019
BEIJING VANCOUVER -- The government of Canada should intervene to end the extradition process against Huawei executive Meng Wanzhou, her lawyers argue in a letter sent to Justice Minister David Lametti.
The case against Ms. Meng is "palpably" political and "simply extraordinary" from a legal and foreign-policy perspective, the lawyers said in a statement released Monday. They did not disclose the text of the letter to Mr.
But in a three-page news release, they said "no similar extradition request has ever been entertained by Canada," adding that the "factual and legal underpinnings for Ms. Meng's extradition are without precedent in Canadian law."
The Justice Department did not immediately respond to a request for comment.
The justice minister can step in at any time to cancel an extradition process. Former prime minister Jean Chrétien floated that idea this month, saying it could help two Canadians jailed in China since the December arrest of Ms. Meng in Vancouver.
Foreign Affairs Minister Chrystia Freeland, however, flatly rejected the suggestion, saying it "would be a very dangerous precedent indeed for Canada to alter its behaviour when it comes to honouring an extradition treaty in response to external pressure."
On Monday, the lawyers for Ms.Meng - David Peck, David Martin, Scott Fenton and Eric Gottardi - raised historical precedent for Ottawa standing "up for Canadian values, including the rule of law, even in circumstances where this has meant a departure from American foreign policy." They cite the example of Canada's refusal to join the U.S.-led invasion of Iraq in 2003.
Others in the Canadian legal community, however, cautioned against government intervention. The arguments Ms. Meng's lawyers are making to Mr. Lametti are ones "that they can raise before the extradition judge at the hearing. To suggest that the minister should intervene now in the process, I don't agree with that," said Lorne Waldman, a Torontobased lawyer who is one of Canada's foremost authorities on immigration and refugee law.
"The whole case has become so politicized that if he were to do that, it would look like it was done for political reasons as opposed to legal reasons."
Ms. Meng is accused of providing misleading information to foreign banks regarding the nature of Huawei's relationship with Skycom Tech. Co. Ltd., which the U.S. Department of Justice calls a subsidiary that sold telecommunications equipment to Iran. U.S. prosecutors say that placed those banks at risk of violating U.S. sanctions, through the money they handled. According to the indictment against Ms.
Meng, one of the banks in question "cleared more than US$100million worth of Skycom-related transactions through the United States between 2010 and 2014."
She has been charged in the United States with bank fraud, wire fraud and conspiracy to commit bank and wire fraud.
Ms. Meng's lawyers deny that she lied. But even if the allegations are true, such conduct lies outside the jurisdiction of the Canadian justice system, they said in the statement Monday.
"Based on the conduct alleged by the United States, neither the foreign bank did anything that could be in violation of Canadian law nor could Ms. Meng be liable in Canada for any criminal offence," the lawyers wrote.
"Canada does not act as an international police force," they added.
In addition, they argue that "there is no double criminality: Ms. Meng's conduct could not constitute an offence in Canada because only the U.S. has sanctions laws prohibiting foreign banks entering into U.S. dollar transactions for doing business with foreign companies that sell commercial goods into Iran."
As a result, it would be "wholly consistent with the rule of law" for Mr. Lametti to withdraw the extradition proceedings, they argue.
But even if some aspects of the case against Ms. Meng are novel, that in itself does not mean it should be tossed, said Joanna Harrington, a legal professor at the University of Alberta who is a part-time member of the Canadian Human Rights Commission.
"I cannot think of a similar case by memory, but being a new or different request does not pose an automatic obstacle," she said in an e-mail. "Extradition law is designed to adapt to new situations. The key aspect is not whether the request is or is not unprecedented. The key aspect is whether there is double criminality since that is a required for a valid extradition."
And the proper place to adjudicate those arguments is before a judge, Mr. Waldman added.
Some of the arguments made by Ms. Meng's lawyers sound like "strong arguments," he said. "But in our legal system, the place for those arguments is in the court and not in a letter to the Minister of Justice."
The request for a political intervention comes amid a continuing series of legal challenges to Ms. Meng's arrest.
In March, her lawyers filed a civil suit claiming her constitutional rights were violated at the Vancouver airport. They claim she was held and questioned for three hours without being properly advised of her rights and say officers unlawfully searched her electronic devices before she was formally arrested.
In June, the RCMP and Canada Border Services Agency filed court documents that said Ms.
Meng's devices were not searched, by either police or border guards.
Ms. Meng's lawyers have since accused the government of Canada of withholding important evidence. A hearing has been scheduled for September to determine whether prosecutors must disclose additional evidence.
Crown prosecutor John GibbCarsley has, in response, argued an extradition is not a trial, and the government "has provided the disclosure to which my friends are entitled."
The legal battles have created lengthy delays. Ms. Meng's extradition hearing is not expected to begin until Jan. 20, 2020, nearly 14 months after her arrest.
In the meantime, diplomatic and economic relations between Canada and China are at their worst since the Tiananmen massacre in 1989. Beijing has refused requests to speak with Canada's top political leadership.
China has arrested two Canadians - Michael Kovrig and Michael Spavor - sentenced two other Canadians to death and blocked imports of a raft of Canadian agricultural products, most notably canola and pork.
China and Canada have issued competing warnings to travellers, each citing the risk of arbitrary measures taken by local authorities in the other country. In January, Chinese applications for 10year tourist visas to Canada fell nearly in half compared to the previous year.
While the prospect of the government intervening to halt the extradition of Huawei chief financial officer Meng Wanzhou, seen on May 8, has been floated by the likes of Jean Chrétien, some in the Canadian legal community caution against the idea.