Why Attorney General should intervene in Meng Wanzhou extradition case

As part of our Campaign to Free Meng Wanzhou, we are republishing the following opinion article from the CBC:

 

Why Attorney General should intervene in Meng Wanzhou extradition case

Meng Wanzhou, chief financial officer of Huawei, leaves her home to attend a court hearing in Vancouver on Sept. 29. She is the subject of a U.S. extradition request that has caused serious foreign relations issues for Canada with both the U.S. and China. (Darryl Dyck/Canadian Press)

Link:

https://www.cbc.ca/news/opinion/opinion-meng-wanzhou-extradition-1.5744799?__vfz=medium%3Dsharebar

This column is an opinion by Mo Vayeghan, a Vancouver-based criminal defence lawyer and a former Crown prosecutor in British Columbia. He holds a Master’s degree in law from Columbia Law School in New York City, and is the founder of Vayeghan Litigation, a criminal defence and immigration law firm in Vancouver. For more information about CBC’s Opinion section, please see the FAQ.

The extradition case of Meng Wanzhou has raised troubling questions about undue U.S. political influence on the hearings in Vancouver. Let’s be clear about one thing: Meng’s case is anything but normal, and its unusual nature risks compromising the integrity of Canada’s justice system.

To resolve this conundrum, intervention by Canada’s Attorney General is needed.

Meng, the chief financial officer and heiress to China’s telecom giant Huawei, is being sought by United States prosecutors for violating that country’s sanctions against Iran. They have asked Canada to extradite Meng to face trial in New York on fraud charges. The court battle in Vancouver will determine whether Meng should be legally handed over to the U.S. under the applicable laws governing U.S.-Canada extradition requests.

Canada’s extradition treaty with the United States serves important law enforcement interests in both countries. In an ideal scenario, extraditions are free from political influences. The charges facing an accused person are not motivated by foreign policy calculations or trade negotiations.

Unfortunately, and through no fault of Canadian prosecutors, Meng’s extradition hearing has been unquestionably consumed by politics. It is to bury one’s head in the sand to deny this, and Canada’s Attorney General must take note.

Huawei chief financial officer Meng Wanzhou arrives at B.C. Supreme Court Sept. 30. The U.S. wants her extradited to face charges of fraud and conspiracy. (Ben Nelms/CBC)

 

First, some important context.

How unusual is this case? Very – the move by the United States government to bring criminal charges against the top executive of a multinational corporation is rare.

Consider for a moment the 2015 probe of Deutsche Bank by U.S. financial regulatory agencies. In that case, similar to the current accusations facing Huawei, Deutsche Bank was accused of violating U.S. sanctions against Iran. But instead of indicting top executives and seeking their extradition, the U.S. government fined the German banking giant $258 million and merely required it to fire six of its employees.

Why the different treatment? Look no further than President Trump’s own words.

During an interview with Reuters on Dec. 11, 2018, just days after Meng’s arrest at Vancouver International Airport on an extradition warrant, President Trump expressed openness to using Huawei’s top executive as a bargaining chip in trade negotiations with China. When asked if he would intervene in her case, Trump said: “Whatever’s good for this country, I would do.” He then went on to state: “If I think it’s good for what will be certainly the largest trade deal ever made – which is a very important thing – what’s good for national security, I would certainly intervene if I thought it was necessary.”

Some may say that this is the usual bluster of a president who has a tendency to speak off the cuff. But those who closely monitor the conduct of the United States Department of Justice under Trump’s administration know that there is real meaning behind the president’s remarks. A number of legal analysts have persuasively argued that the U.S. Justice Department does not operate as a truly apolitical body under Trump.

As demonstrated through the unprecedented and lopsided treatment of Trump’s close confidants, Michael Flynn and Roger Stone, it is hard to convincingly argue that U.S. prosecutors enjoy unfettered independence in criminal cases that have attracted Trump’s personal attention.

U.S. President Donald Trump, left, expressed openness to using Huawei’s top executive Meng Wanzhou, right, as a bargaining chip in trade negotiations with China. (Leah Mills/Jennifer Gauthier/Reuters)

 

Canada’s extradition treaty with the United States is based on the implicit understanding that extradition requests by the U.S. government will not be politically motivated. In situations where the U.S. fails to meet this threshold, Canada should not oblige such requests.

Meng’s extradition has the appearance of being a politically charged move by the Trump administration to gain leverage in the midst of a contentious U.S. trade dispute with China.

The Canadian prosecutors litigating the Meng extradition case in Vancouver at the request of U.S. authorities have attempted to maintain the integrity of Canada’s judicial system by shunning politics. However, Trump’s explosive comments have cast a dark shadow over these proceedings that is hard to remove, and this may have done irreparable harm to the legitimacy of these hearings.

It is within this environment that, since December 2018, Canadians Michael Kovrig and Michael Spavor have been arbitrarily detained in China in what Human Rights Watch has referred to as an “act of retaliation” by the Chinese government against Canada for the arrest of Meng.

This is the human tragedy of a U.S. extradition request that lacks the perception of legitimacy. Not only does fulfilling this request risk harming the integrity of Canada’s justice system, but it also comes at the cost of two innocent Canadians who have been held in conditions that are reportedly “tantamount to torture.”

At this juncture, the judge presiding over the Meng case in Canada is considering whether to accept an argument by her lawyers that the United States misled Canadian officials about the details of the fraud allegations facing her. However, irrespective of this specific ruling, it has been nearly two years since Meng’s arrest and this case is bound for a protracted court battle that could take years more before it reaches a conclusion.

This means Canada could be caught in the middle of the U.S.-China trade dispute – and an extradition case that throws the impartiality of Canada’s justice system into question – for a very long time.

Pursuant to the Extradition Act, Canada’s Attorney General David Lametti has the power to pull the plug on Meng’s extradition case at any point during the court process. Lametti has so far refused to intervene, arguing that the judicial phase must play its course.

David Lametti, Minister of Justice and Attorney General of Canada, has stated that he would not intervene in extradition proceedings for Huawei executive Meng Wanzhou during the court process. (Adrian Wyld/Canadian Press) 

However, the circumstances surrounding the case are now such that no matter what its outcome, it will be difficult to say that the proceedings are free from outside political influence.

In these circumstances, the Attorney General should take the bold step of exercising his lawful power to end Meng’s extradition proceedings in Canada.

This would allow Meng to go free and return to China. This is the right thing to do in order to clear Canada’s justice system from the political stain of the United States’ extradition request for Meng. Such a move could also help secure the release of Michael Kovrig and Michael Spavor.

As has been noted in our case law, the integrity of our system of prosecution is eroded when the public has the perception that criminal charges are politically influenced. Let us not forget the wise words that Canadian courts frequently quote: “Justice must not only be done, but must be seen to be done.”


About the Author

Mo Vayeghan is a Vancouver-based criminal defence lawyer and a former Crown prosecutor in British Columbia. He holds a Master’s degree in law from Columbia Law School in New York City. He is the founder of Vayeghan Litigation, a criminal defence and immigration law firm in Vancouver.

 

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