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Everything you need to know about the wild Huawei extradition case in Canada

The U.S. has a week to formally file an extradition request for Meng Wanzhou, who was detained in Vancouver at its behest.
Meng Wanzhou was detained in Vancouver last month at the request of the United States.

With a week to go until the United States has to formally file an extradition request for Meng Wanzhou, the Chinese tech executive whose arrest in Canada sparked unprecedented diplomatic tensions between Ottawa and Beijing, the spotlight will soon be on Canada’s judicial system.

Extradition law is complicated as is, but even more so when it involves sanctions and the possible extradition of a person who was arrested in a country that isn’t party to those sanctions — as is the case with Meng, the Huawei chief technology officer, who was arrested while travelling in Vancouver at the request of the United States for crimes allegedly committed in Hong Kong.

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As the deadline approaches, Canadian politicians have been stressing the rule of law is what matters, and that whether or not Meng is surrendered to the U.S. will ultimately be decided by a court.

But it’s been a wild week in this case, with Canadian diplomats weighing in in ways that have some observers questioning how true that actually is.

On Wednesday, Canada’s ambassador to China John McCallum outlined possible defenses Meng could use to fight extradition in a meeting with Chinese-language media — one of them, ironically, being comments made by Donald Trump that he argued amounted to “political involvement.”

“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. So I think she has some strong arguments that she can make before a judge," McCallum said.

By Thursday, the ambassador was walking back his comments.

“I regret that my comments with respect to the legal proceedings of Ms. Meng have created confusion," Mr. McCallum said in a statement. "I misspoke. These comments do not accurately represent my position on this issue.”

Canada’s ambassador to the U.S. David MacNaughton has also said that Canada was paying the price for the U.S. “seeking to have the full force of American law brought against [Meng]” — a comment that some have interpreted as signalling to Canadian courts what the government would see as the ideal outcome.

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Wrapped up in this political drama is the fact that through all this, two Canadian men — a former diplomat and an entrepreneur — continue to sit somewhere in China, detained in what is widely considered to be retaliation for Meng’s arrest.

Here is everything you need to know about what the court will have to consider, as well as the role of the Canadian government.

Is it true that the Canadian government has no say in this?

Not entirely. Canada’s Justice Department has 30 days after the U.S. files its extradition request to issue an “authority to proceed.” Then, there’s an extradition hearing, in which a Superior Court judge will decide if there’s enough evidence in the case that it would go to trial in Canada — a low bar, since the judge isn’t ruling on guilt or innocence. If a court decides Meng should be extradited, Justice Minister David Lametti would ultimately have to decide whether or not she should be surrendered.

“At all the major steps, the justice minister does have an authority,” said Yves Tiberghien, a political science professor at the University of British Columbia and Director Emeritus at the Institute of Asian Research.

Historically, the justice minister doesn’t look at many extradition cases and delegates them to a bureaucrat, said Tiberghien.

“Now this case is so high level, so political, so strategic that I can’t imagine the justice minister will not personally look at it,” said Tiberghien.

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Does Meng have a strong case?

Like McCallum said in his remarks to Chinese media, Meng could use the defense of political intervention by Donald Trump.

Last month, Trump said that he would intervene in the case if it helped him get a good trade deal with China — the extradition treaty, however, doesn’t allow someone to be extradited if it is deemed to be for a political purpose.

By Thursday, however, the ambassador’s own comments and actions were being criticized for creating the appearance that for Canada, Meng’s case was political, and that if the court did decide that she should be extradited, the Canadian government would be willing to intervene.

Further fueling speculation around political interference by Canada, the The Toronto Star reported that the Trudeau government asked that the U.S. ensure that if Trump was actually going to use Meng as a bargaining chip for a better trade deal, it include the release of the two detained Canadians in that negotiation.

Why is this case different?

Canada receives many extradition requests — over the last five years, there have been 446 — and about 90 percent of them are granted, but this one is highly unusual in that it involves sanctions against a third country, and isn’t just about criminal or civil law in the requesting country.

Canada and Iran, like most of the world, are still part of the joint comprehensive plan of action (also known as the Iran deal), which Trump pulled out of in May of 2018 before re-imposing sanctions against Iran and breaking the U.S.’s legal obligations under the UN charter. Since then, the Trump administration has been penalizing other countries for engaging economically with Iran.

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At her bail hearing, prosecutors said between 2009 and 2014, Huawei used a Hong Kong-based company Skycom Tech to do business with telecom companies in Iran, breaching American sanctions, and that Meng mislead American banks into doing business with Skycom. This was before the Iran deal. And although the UN did have sanctions against Iran, telecommunications weren’t included — sanctions against telecommunications companies were imposed by the U.S. for added pressure. Canada did not have similar sanctions against Iran.

The fact that Meng was arrested in Canada is also unusual — and not only because the U.S. normally tries to fine companies for violating sanctions, rather than detaining executives.

“Normally, when you have sanction violations, other countries don’t pursue their own sanctions in an extraterritorial fashion,” said Tiberghien. “That means you don’t go after a third-country national in another country… this has never been done before.”

Dual criminality

Canada’s extradition treaty with the U.S. requires dual criminality — that is, the offense has to be criminal on both sides of the border. Canada wouldn’t extradite people for consuming marijuana, for example, since it is legal here.

Knowing this, the U.S. hasn’t accused Meng of breaching sanctions (since Canada doesn’t have sanctions against Iran), but of bank fraud related to the sanctions.

“That’s where the court will have a decision. If it’s pure bank fraud, then they can say, under Canadian law, we also have bank fraud and therefore, the case can proceed,” explained Tiberghien. “But if they say the bank fraud was attached to Iran sanctions, and we have a different law from the U.S. and we don’t have dual criminality, then the case cannot proceed.”

Cover image: Huawei chief financial officer Meng Wanzhou is escorted by her private security detail while arriving at a parole office, in Vancouver, on Wednesday December 12, 2018. THE CANADIAN PRESS/Darryl Dyck