Showing posts with label Canadian Extradition Act. Show all posts
Showing posts with label Canadian Extradition Act. Show all posts

Tuesday, 16 July 2019

Extradition from Canada to the USA: Why Meng's Chances of a Favourable Canadian Verdict are Slim

Extradition by the numbers

This Extradition Fact Sheet from a Government of Canada website provides statistics on Canada-to-the-USA extradition cases over a ten year period from 2008 to 2018.  As you can see, once a  case is before a Canadian judge (as Meng's is now) only 8 times (total number of discharges/refusals in 10 years) of 798 US extradition requests has the court ruled in favour of the individual resisting extradition--roughly 1% of the time.

Fiscal YearTable note *Total number of requestsArrestsATP’s IssuedOrder of Committals Total number of discharges/ refusalsWithdrawalsTotal number of people surrendered
2008-2009978467400161
2009-20101186563301349
2010-20111327158161661
2011-20121179372310281
2012-20131019566343665
2013-2014534943341758
2014-2015475338291552
2015-2016443430290241
2016-2017403532211649
2017-2018494738230235
TOTAL798626507287840552
 A CBC News report on the "High Rate of Canadian Extraditions" described the need for reform.  As Robert Currie, a professor of law at Dalhousie University, described the Canadian system, "Once you are sought for extradition, your goose is pretty much cooked."

Best chance of avoiding extradition before Minister issues Authority to Proceed

In the same table above, when we compare the "number of requests" to "ATPs issued" (Authority to Proceed), we discover that in 65% of cases an Authority to Proceed was granted.  In other words for a person facing extradition, the best chance of avoiding extradition (35%) comes before an ATP has been issued.  Unfortunately for Meng, On March 1, 2019, the Department of Justice issued a press release announcing:

Today, Department of Justice Canada officials issued an Authority to Proceed, formally commencing an extradition process in the case of Ms. Meng Wanzhou. 
The decision follows a thorough and diligent review of the evidence in this case. The Department is satisfied that the requirements set out by the Extradition Act for the issuance of an Authority to Proceed have been met and there is sufficient evidence to be put before an extradition judge for decision.

Who issues Authority to Proceed?  Justice Canada officials or the Minister?

While this press release makes anonymous "Department of Justice Canada officials" responsible for the issue of an Authority to Proceed, elsewhere the Ministry website seems clear that "The Minister of Justice must determine whether to authorize the commencement of extradition proceedings in the Canadian courts by issuing an 'Authority to Proceed'."  In other words, from December 1, 2018 to March 1, 2019, the Minister of Justice, in consultation with the International Assistance Group of the Canadian Department of Justice, had the option not to issue an "Authority to Proceed" and release Meng from house arrest.

Who issues provisional arrest warrant?  A judge or the Minister?

On December 12, 2018, Jody Wilson-Raybould issued a statement saying:  “As the Minister of Justice, I take my extradition responsibilities and obligations very seriously." In that statement Wilson-Raybould claims:
Ms. Meng was arrested pursuant to a provisional arrest warrant issued by a judge of the Supreme Court of British Columbia a procedure which is contemplated in both the Extradition Act and the Treaty on Extradition between Canada and the United States in circumstances where urgency has been established. The decision to seek a provisional arrest warrant from the court is made by Department of Justice officials without any political interference or direction.

However, what the Extradition Act says is:
The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant 
And consequently:
A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of a person
How could Wilson-Raybould claim that "a provisional arrest warrant was issued by a judge" in accordance with the Extradition Act, when the Act specifies that she as Minister of Justice was responsible for issue of the warrant?  As explained on the Public Prosecution Service of Canada website:
Extradition treaties do not themselves create an obligation or a power to arrest in Canada. They merely define the basis on which provisional arrest may be requested. The judicial power to order provisional arrest arises under section 13 of the Extradition Act, once the Minister of Justice approves the request for provisional arrest (section 12).
How could Wilson-Raybould claim that the decision was made "without political interference or direction" when the Act and the Public Prosecution Service confirm that "the Minister of Justice approves the request"?

In Canada EXTRADITION IS POLITICAL

I must admit I have started yelling that in Canada EXTRADITION IS POLITICAL.  (By the way, kudos to David Akin for sharing my rebuttal to his ANALYSIS on his Twitter feed.  What better way to contradict my claim that journalists were censuring the discussion than to forward a link to my post.  As of today, I can report that the post has been viewed 71 times.)

I have gone looking for an answer to the question:  When the Extradition Act says "the Minister" does the text really mean anonymous "Officials of the Department of Justice"?  I have not found an answer that I can quote here, other than the glossary of definitions at the beginning of the Act which states: "Minister means the Minister of Justice."  What I have found are repeated confirmations that in Canada extradition is political.

Justice Minister David Lametti has already confirmed, in an interview with the Star that
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 to the United States over China’s furious objections.
David Akin also confirms that
[ . . .] there will be an opportunity for Prime Minister Justin Trudeau, through his justice minister, David Lametti, to intervene and, if they so choose, to block the extradition.But that opportunity comes much, much later, at the very end of the extradition proceeding.

The Shift from "it's not political" to "it's not political yet"

 The argument has shifted from "it's not political" to "it's not political yet." The problems with the new argument are numerous.  In the first place, someone should tell Minister of External Affairs, Chrystia Freeland, so she can stifle her strident claims that “When it comes to Ms Meng there has been no political interference ... and that is the right way for extradition requests to proceed.”

The second problem with the "let's do nothing now" approach, is that the extradition hearings in BC Supreme Court are not scheduled to start until January 2020.  The case will go on for at least two years, Canadians will languish in a Chinese prison, Canadian businesses and trade will suffer, and Canadian trade and relations with China may never fully recover.  As I commented at the beginning of the year: "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."

The third problem with "let's wait" is that there is no legal, moral or practical reason to wait.  The Extradition Act states: "The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention."  "At any time" includes right now.  If the Minister considers "all the relevant circumstances," as indicated in the law, the grounds for withdrawing the Authority to Proceed are numerous:  the original warrant is suspect, the request political, contrary to the Canadian Bill of Rights regarding nationality and ethnicity, no individual has been convicted of a crime in the USA for the behaviour of which Meng is accused (business in Iran), such behaviour is definitely not a crime in Canada, and, for obvious, practical reasons she will never be imprisoned in the USA as required by the Act and the Treaty on Extradition Between the Government of Canada and the Government of the United States of America.

The fourth problem with the passive, "wait and see," "let the judge decide" attitudes of our political leadership is they grossly overestimate the power of judges in extradition cases.  As the Supreme Court of Canada Judgement outlines in McVey versus the USA, "the role of the extradition judge is limited but important:  he or she must determine whether a prima facie case exists that the conduct of the fugitive constitutes an "extradition crime" according to Canadian law."  In this "Judgement" the Justices make the point 15 separate times that the extradition judge has "limited" functions and "modest" powers.

The solution is political, but Canadian politicians play Pontius Pilat

The point here is that unlike the Minister of Justice who is tasked with considering "all the circumstances," the extradition judge is only tasked with considering whether or not what Meng has done looks, at first glance, like bank fraud--the extraditable offence of which she is accused.  However, the Supreme Court Justices have indicated that the extradition judge cannot investigate or consider American law.  Can she,  for example, consider the fact that no individual has ever been convicted of a crime in the USA for transgressing the Iran sanctions?  It appears not.  This responsibility falls to the Minister of Justice.  The historical statistics indicate that Meng has a 99% chance of being extradited.  This is so because of the limitations of an extradition hearing and limited powers of an extradition judge, and the reluctance of the Minister of Justice to act at the end of extradition hearings.

Supreme Court of Canada confirms Minister, not a judge, has the power 

The Supreme Court Justices make the point repeatedly that the extradition judge's powers are limited, but the Minister of Justice's powers are broad:
When a request is made, the political authorities in the requested state will examine the material to see that the request complies with these terms and conditions.  The treaties also make provision for the requesting state to supply certain material whereby the requested state can determine the validity of the request and its compliance with the terms and conditions of the treaty (see Art. 9 of the treaty here (Can. T.S. 1976 No. 3)), and it is reasonable that these are the materials to be looked at in determining the issue.  In essence, the treaty obligations are of a political character to be dealt with in the absence of statute by the political authorities.
          [ . . . .]
Nowhere is the duty to consider the foreign law assigned to the extradition judge.  This, as I mentioned, is a task for the political authorities at common law, now assigned by statute to the Minister of Justice.
          [ . . . .]
In Canada, the procedure, we saw, is more fluid, the case frequently coming before the extradition judge before the formal requisition has been made.  But the substance is the same; the Minister of Justice may at any time refuse to surrender and discharge the fugitive (s. 22 of the Act).
           [ . . . .]
the Extradition Act, which we saw only requires that there be prima facie evidence of an act that constitutes a crime listed in the treaty according to the law of Canada.  In fact, the Act does not deal with proof of foreign law at all.  That, as I said, is a matter for the executive.  (The executive, in Canada, means political representatives of the Queen, in particular the Prime Minister. See https://www.lawnow.org/democratic-governance-the-constitution-and-canadas-branches-of-government/).
           [ . . . .]
[ . . .] what is really important is that a person should not be surrendered to another country for conduct that is not considered a serious crime in the requested country.  
Canada and Canadians are facing a serious situation which requires political action.  We have to stop letting our politicians off the hook with delaying, 'it's not political" arguments and require them to perform the duties for which they were elected.


Sunday, 7 April 2019

Why Does Everyone Care So Much about This Huawei Issue?

The Huawei case matters to Canadians

I don’t know about “everyone,” but I can tell you why I, as a Canadian, “care so much about the Huawei issue.” In theory Canada and the USA are independent countries and trading partners. However, for most of my adult life, I have been aware of the argument that in practice the relationship is more like a colony and the empire which controls that colony. In this kind of colony-empire relationship the colony can benefit from the relationship and pursue its own interests, but when the interests of the colony and the interests of the empire are in conflict, the colony must always give priority to the interests of the empire. No case in my life time has more acutely demonstrated Canada acting against its own interests in order to serve the interests of the USA than the arrest and extradition of the Huawei CFO.

Diversifying our trading partners versus "the China clause"

As an independent country it is in Canada’s obvious interest to diversify its trading partners, to establish trading relations with other countries and most importantly with China, the second largest and fastest growing economy on the planet. It is in Canada’s interest to adopt Huawei’s 5G technology, and to benefit from the jobs and research that Huawei Canada has to offer. The Americans have made their opposition to Canada-China trade relations clear by insisting on what is known as “the China clause” in the recent US-Canada-Mexico trade agreement.

https://www.cbc.ca/news/opinion/...

Arresting Meng blocks Canada's trade with China:  who benefits?

Requiring Canada to arrest Meng (she could have been arrested in numerous other countries) had strategic value for US interests: by causing a rift between China and Canada. Thus the Americans doubly insured that trade negotiations between the two countries would be halted. However, it is not American behaviour which disturbs me and makes me “care so much about the Huawei case.” The behaviour of Canadian politicians and the Canadian media is what I find incredibly frustrating and disturbing—and makes me care about the Huawei case more than ever.

Are Canadians really honest, law abiding and open-minded?

Canadians tend to think of themselves as honest, law abiding, and open-minded. We admire politicians and media journalists who tell us repeatedly that we are honest, law-abiding and open-minded. As long as we keep hearing this message, we have no reason to question ourselves. We can focus our attention and outrage on “other people” who are not as honest as we are. However, in the Huawei case, our politicians have not been honest, the media has simply repeated the lies and mistakes of our politicians, and two thirds of Canadians have believed what they have been told. We have not followed the law, the Canadian Extradition Act, in the Meng extradition case. We have remained closed-minded, refusing—in the public domain—to even consider that the Meng extradition is not in keeping with Canadian law. The Canadian ambassador to China was fired by the Prime Minister, Justin Trudeau, just for saying that Meng had a strong case—which experts agreed was obvious. The new Justice Minister, David Lametti (the former Justice Minister Jody Wilson-Raybould was demoted in the middle of Meng case) has decided to proceed with the Meng extradition. What chance was there that he would decide against extradition when his boss, the Prime Minister, had fired the ambassador, just for saying that not extraditing Meng was a possible outcome? Despite this obvious political interference and the new Justice Minister saying publicly that extradition is “political,” you will still hear politicians, journalists and people in general in Canada insisting that the Meng extradition is a “non-political, judicial” affair.

Why are Canadians operating against their own best interests?

Why are Canadians behaving this way? This is where the case gets so sad and I find myself caring so much. The only reason I can see (other than a total lack of awareness) that our politicians, our media and people in general would behave this way is that they have automatically adopted the attitude of the victim, of the colony, and are convinced that if we don’t do what we think the USA wants, we will be severely punished. How pathetic! We had ample reason to reject the initial warrant: the US Attorney, Richard Donoghue, who issued the warrant, was in a conflict of interest. We had ample reason to deny extradition: it was obviously political, based on Meng’s nationality and ethnicity, and there was no precedent for arresting an executive in this type of case. The Americans (in general) would have accepted our legal arguments and might even have respected our independence, but instead we reverted to cowering acquiescence and the self-delusion that we Canadians are honest, law-abiding and open-minded.

Tuesday, 22 January 2019

Liberal Entropy: The Challenge of Doing Nothing

Conservative, Liberal, Socialist:  The Basics

I used to baseline the three dominant political positions this way:  a conservative wants the country to stay more or less the way it is or has been, a socialist wants society to change and a liberal believes that everything will turn out fine if we do nothing.  Logically, the Conservative Party tends to attract the well-to-do who are enjoying the status quo.   A left-leaning party like the NDP (the only party I've ever been a member of) will find its numbers in the working and lower middle class.  The Liberal Party enjoys the advantage of the middle-class, middle ground while appearing socialist in public and being conservative in private.  The problem of the Liberal Party isn't so much hypocrisy (though some might rightly call it such) as coherence.  (See Truth and Coherence.)


Me a Liberal?!!  Okay, Maybe Sometimes.

My lefty friends have occasionally accused me of being a liberal.  My conservative friends think I'm a lefty liberal.  I have to admit that, in politics, I often think "nothing" is the right thing to do.  I'm rarely disturbed by what goes on (or doesn't go on) in Parliament, because I understand that "doing something" in politics means forming a committee, or writing a letter, making a phone call, or, in most cases, publicly expressing disagreement, disappointment, and even outrage to the point that a phone call, or a letter or a new committee might be required.  It is easy to forget that the principal reason we elect our parliamentarians is for them to vote, and most of the time their votes have absolutely no effect on outcomes because the issues are always decided in advance of a parliamentary vote.

Doing Nothing Isn't Easy

When the Liberal Party wins 39.5% of the popular vote and therefore 100% of the power in our lopsided democracy (see Are Canadian Elections Democratic?), as they did in our last election, we might imagine we can all relax because nothing is going to happen for the next four years.  However, "nothing" isn't as easy to do as you might imagine.  To begin with, there are those nagging little promises made during the election campaign in 2015.

The Liberal Waltz:  One Step Forward, Two Steps Back

Having promised "that 2015 will be the last federal election conducted under the first-past-the-post voting system," the Liberals had the challenge of pretending they were interested in reforming the electoral process while insuring that nothing actually changed.  The Liberals quite rightly and righteously expressed outraged at the imprisonment and torture of Raif Badawi  in Saudi Arabia, then ratified the contract to sell that same Saudi government 15 billion in armoured military vehicles. Liberals never quite being able to pass on a photo op, Chrystia Freeland was there at the airport to welcome a young Saudi woman claiming refugee status.  (Who knew that there was only one young woman in Saudi Arabia who wanted to claim refugee status? Or was this photo op about distracting us from the Meng house arrest?)  On another front, after pledging to "phase out subsidies for the fossil fuel industry over the medium-term," it appears that the plan is to hope that no one notices that we are in the end-term and the subsidies are still in place.  Additionally, there is a semantic argument that buying the Trans Mountain pipeline from Kinder Morgan, the Texas oil and gas infrastructure company, for five billion dollars isn't really subsidizing "the fossil fuel industry"--it's more like a gift.

Here I Go Again

Yet, when the perfect opportunity arose to do nothing and doing nothing would serve the interests of Canada and Canadians, the Liberal Government failed to follow through with its own most basic tenant and mantra.  Imagine the scene when Prime Minister Justin Trudeau was informed, three days in advance, that  Sabrina Meng Wanzhou, Huawei CFO, was going to be arrested on a warrant from the US Attorney for the Eastern District of New York.

Minion:  Mr. Prime Minister the Americans have issued a warrant for the arrest of the Huawei CFO in Vancouver.

PMJT:  Uhhh. Wow.  Uhhh. Holy cow. Uhhh.

Minion:  Don't worry, Mr. Prime Minister, this extradition request is not political.  [Wink, wink].  If it was political we would have to refuse the request.  It's definitely not political so you don't have to worry about it.

PMJT:  If it's uhhh not political, why uhhh are you uhhh telling me about it?

Minion:  Well, we like to notify the PM about these things that are non-political.  When it's political we just call the cops . . . ha, ha, ha!

PMJT:  So Trump wants this Huawei executive arrested.

Minion:  God no.  Trump doesn't want her arrested, or maybe he does.  Actually we don't know what Trump wants, but the extradition request was from Richard Donoghue.

PMJT:  Who's Richard Donoghue?

Minion:  He was the Chief Litigator for CA Technologies.

PMJT:  You mean we are going to uhhh arrest one uhhh tech company exec on a warrant from another tech company exec?

Minion: Donoghue just became a US Attorney, so the warrant should be legit.

PMJT:  So uhh what did this Huawei executive do?

Minion:  That's a bit complicated, but basically she is accused of moving money in Iran.

PMJT:  Is that against the law?

Minion:  Not any more, but it was against the law in 2014 when she is accused of doing it.  The Americans are calling it "bank fraud."

PMJT:  "Bank fraud!"  Shit, Minion, why didn't you say so?  Sort of like that uhh Bernie Madoff guy, eh?

Minion:  The Americans are talking about similar sentencing guidelines.  Thirty years in prison for each count.

PMJT:  Wow wee!  Have a lot of people been doing this uhh illegal money thing in Iran?

Minion:  A ton.  A half dozen major banks have already been convicted.

PMJT:  Geez.  So all these bank execs have been sentenced to multiple thirty-year prison terms.

Minion:  Oh no, Prime Minister. [Stiffing a laugh.]  No one has ever been sent to jail for this.  The banks pay a fine.

PMJT:  So we'll extradite her to pay a fine?

Minion:  No, the Extradition Act requires that it be for at least a two-year prison sentence.

PMJT:  If uhh no-one has gone to prison for this before, why are they talking uhh about prison this time?

Minion:  Uhh, Prime Minister [wink, wink], she's Chinese.  Huawei is a Chinese company.

PMJT:  Can we arrest and extradite someone for being Chinese?

Minion:  Not since the Head Tax.  Today it would be against the law, against the Canadian Extradition Act, to extradite someone because of her ethnicity or nationality or for political or purely commercial reasons or if we thought she was going to spend less than two years in prison.

PMJT:  But we are going to arrest her because she is Chinese, from China, a Communist country, and because Huawei is stealing business from the big tech companies, and even though we know she is never going to spend two years in jail.

Minion:  Yes, but you know, the Chinese, the whole "dangerous" and "national security" thing.  Need to worry about "censorship," "backdoors" and that sort of stuff.

PMJT:  So who's in charge of extradition?

Minion:  Jody.

PMJT:  Our Jody?  Why?

Minion:  Because she's the Minister of Justice.

PMJT:  Still?

Minion:  What do you want her to do, Sir?

PMJT:  Nothing.

Minion:  That sounds like a sound policy, Mr. Prime Minister.


Epilogue

"Doing nothing" would have been the perfect policy in this instance if the message had been passed on to the Minister of Justice and the Minister of Public Safety and the RCMP.  The warrant would not have been served with ample justification for not serving the warrant in the overall circumstances and the Canadian Extradition Act.  Sabrina Meng Wanzhou would have continued her itinerary to Mexico and France.  Neither country, I'm willing to bet, would have served her with the American warrant and, most importantly, Canada would not be in the mess our Liberal government's actions have put us in, when we specifically elected them to do nothing.


Thursday, 3 January 2019

When Chrystia Freeland Said that the Extradition of Huawei CFO, Sabrina Meng Wanzhou, Was Strictly a Judicial Affair, Was She Lying? Or Just Avoiding the Truth?

Generally, I have been a Freeland admirer (see Saint Mathew Pray for Us).  I sympathized as she stood beside Mike Pompeo at a Washington press conference and had to come up with six different ways of saying that the arrest, detention and possible extradition of Huawei CFO, Sabrina Meng Wanzhou, was strictly a judicial affair--and in a "rule of law" country like Canada, the process was immune from political interference.



I believed her. I had already read the same claim in half a dozen news reports.  I repeated the claim myself. When a claim gets repeated that often, it's hard to resist the idea that it must be true.  Then, I had a look at the Canadian Extradition Act.  Here is what the Extradition Act actually says:

Withdrawal of the authority to proceed 
(3) The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention.

"The Minister" in this instance is the Minister of Justice: Jody Wilson-Raybold.  Far from restricting elected officials from interfering in the case, the Act specifically empowers the Minister of Justice to refuse the extradition:

Reasons for Refusal
Marginal note:When order not to be made 
44 (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that 
(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances; or
 (b) 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.Marginal note:



The Act clearly and repeatedly specifies that the Minister has the power and even the obligation to take action.  She has the power to consider "all the relevant circumstances" and "may at any time withdraw" the judiciary's authority to proceed with the extradition.  She has the power to set aside the order for Meng's detention.  Perhaps it's time for our political leadership to end the pretence of powerlessness and begin acting as if Canada were a sovereign nation.  Let's stop acting like a branch plant of corporate America.  Let's resolve this messy situation in the best interests of Canada and Canadians before it gets even worse.

Addendum

On January 14, 2019, (11 days after I first published this post), Jody Wilson-Raybold was replaced as Minister of Justice by Dave Lametti.

https://www.billboard.com/articles/business/8493858/appointment-canada-new-minister-justice-copyright-reform-concerns

Addendum 2

On Feb. 7, 2019, after 9 weeks of denial 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/politics/federal/2019/02/07/decision-whether-to-extradite-huaweis-meng-wanzhou-will-ultimately-take-political-factors-into-account-new-justice-minister.html
However, this admission has passed virtually without comment in the Canadian media.