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

Monday, 8 July 2019

Canadian Politicians Were Caught Like Deer in the Headlights, but Why Are Canadian Journalists Censuring any Discussion of the Merits of Meng's Case?

"The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum."                                                                                       Noam Chomsky         

After the G20 summit, President Trump let it be known that he is backtracking on the Huawei ban. Bloomberg and the Financial Times are reporting that HSBC is telling Beijing "It Is Not to Blame for Huawei CFO Arrest."  Where does that leave us?  Let's see:  HSBC is, according to the Grand Jury indictment, supposed to be the victim of Meng Wanzhou's alleged bank fraud.  The only evidence against Meng, according to the indictment, is a meeting she had with an HSBC executive and an accompanying Power Point presentation.  If the "plaintiff" and the "victim" are backing away from the case, the original warrant suspect and the evidence thin to non-existent, what's left?

Why is Canada still holding Meng Wanzhou, the Huawei CFO, under arrest? Why is Canada accepting that Canadians are being held in a Chinese prison or facing execution?  Why is Canada accepting the blockade of Canadian shipments of canola, pork and beef?  Why is Canada accepting this extreme deterioration of our trade and relations with China?  The answer is:  "Richard Donoghue asked us to." Yes, Canada and Canadians are facing these dire consequences because Richard Donoghue, Chief Litigator for CA Technologies (a Huawei competitor, now owned by Broadcom) who became a US Attorney in 2018, is the individual who requested Meng's arrest and is requesting her extradition.



"Richard Donoghue": what a dumb answer, except that it's true.  Despite the apparent conflict of interest, Canada and Canadians are facing these consequences because Richard Donoghue asked us to. I understand that our Canadian politicians panicked when faced with the request to arrest Meng and were paralyzed with fear and indecision.   "Deer in the headlights" is a very apt analogy.  Later they would have to come up with justifications for their paralysis and spread the nonsense claims that extradition is a "judicial, non-political" affair and we are "following the rule of law"--claims that are easily refuted by simply having a look at the relevant 14 pages of the  Canadian Extradition Act (pages 11 to 15 and 40 to 48).  Bizarrely, politicians of every political stripe lined up behind them without a single example of anyone looking at the details of the case or the law.  However, what continues to baffle and confound me is the refusal of Canadian journalists to allow any serious discussion of the case, in particular, the merits of Meng's defence.



Last week I watched a "rebroadcast" on CBC News of Natasha Fatah hosting a panel of three commentators to discuss Canada-China relations.  "How is it possible," I asked myself, "for four journalists to discuss current Canada-China relations, and never get around to the facts (let alone the legality) of our arresting and holding Meng Wanzhou?"


David Akin of Global News seemed to offer some hope of an open discussion with his "ANALYSIS: Trudeau cannot just order Huawei’s Meng Wanzhou to go free — or can he?"   Those three words-- "or can he?"-- are the nearest I have seen to any Canadian journalist opening up discussion of the grounds for Meng's release.  However the "analysis" turns out to be the usual diatribe designed to close down any rational dialogue.  Although Akin begins by noting that former Prime Minister Jean Chretien has joined John McCallum in discussing the possibility of releasing Meng Wanzhou, he then quotes University of Ottawa law professor Amir Attaran that “I think it’s shocking. [ . . . .] I think that’s absolutely inappropriate. If they want to make those comments, run for office again.”



Take note of the Catch 22.  We have been told that elected officials and their appointees are not allowed to comment (on the grounds that "politicians" and their appointees cannot comment on "judicial" affairs).  Now we are being told that you have to be elected to comment.  Once you have eliminated both the elected and the un-elected, who's left?  We have to wonder, who is this Amir Attaran, who would have us believe that no-one is allowed to discuss the arrest or release of Meng Wanzhou?  According to his Wikipedia page, Amir Attaran has had a very distinguished legal career. He is an American-born Iranian who specializes in medical and environment cases.  Why is a medical/environment lawyer being asked to comment on an extradition case?

We get an answer to this question by reading to the bottom of Attaran's Wikipedia page, where we discover: "In 2013, Attaran accused Peter MacKay of falsely alleging that Justin Trudeau committed a crime by smoking marijuana."  And, when Attaran launch a complaint with the Canadian Human Rights Commission against the Canadian Research Chair program  "The government under Prime Minister Justin Trudeau sided with Attaran [ . . .].

Akin asks the rhetorical question "Why suffer all that pain? Why not just send Meng back to China?" Then answers:  "But we cannot. At least, not right now. Because in Canada, like most western democracies and not — this cannot be stressed enough — like China, politicians cannot simply phone up a judge and order that an accused person be set free."  The folksy tone makes this claim sound like an obvious truth, but it is an absolute falsehood.  This 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 case is Minister of Justice.  So yes, a politician who, according to the law, can put an end to these proceedings and have Meng released "at any time."

Akin claims that

Meng’s case is right now: before Associate Chief Justice Heather Holmes of the British Columbia Supreme Court. 
If Holmes does eventually rule that Canada should honour the extradition request by the United States — which has charged Meng with fraud in association with alleged violations of Huawei on American sanctions on trading with Iran — and surrender her to American authorities, 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.
There is some truth in this claim, but it seems to deliberately get the chronology of events and responsibilities upside down. The Extradition Act specifies that

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, if the Minister is satisfied that  
(a) the offence in respect of which the provisional arrest is requested is punishable in accordance with paragraph 3(1)(a); [i.e., that the crime is punishable by two years of imprisonment] 
and (b) the extradition partner will make a request for the extradition of the person.

As the Justice Committee hearings on SNC-Lavalin revealed, we have an odd situation in Canada in which the Minister of Justice and the Attorney General are the same person.  The Lavalin scandal was about the fact that the government was putting pressure on Jody Wilson-Raybould in her role as Attorney General.  Minister of Justice is a political office, distinct from the Attorney General.

Consider how this single paragraph of the law contradicts so much of what we have been told about the Meng case.  First, extraditions are clearly and explicitly political decisions in Canada.  Second, the Minister of Justice is the first to receive a request for extradition (and it is "a request"; so much for "we had no choice").  Third, the Minister of Justice authorizes the arrest, not a judge.  Fourth, once the Minister of Justice has given the authorization, the Attorney General can instruct a provincial judge (in this case ACJ Heather Holmes) to issue the arrest warrant.  What Akin's claim gets right is that the Minister of Justice can intervene "at any time," including after ACJ Holmes has made her decision.

The law is explicit:

Powers of the Minister
Assurances et conditions 
(3) The Minister may seek any assurances that the Minister considers appropriate from the extradition partner, or may subject the surrender to any conditions that the Minister considers appropriate,
Not only does the law make it plain that the Minister of Justice (a politician) is responsible for the extradition, it lays out the specific circumstances in which a request for extradition is to be refused:

Reasons for Refusal
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.


When order not to be made  
 46 (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that  
[ . . . .]
(c) the conduct in respect of which extradition is sought is a political offence or an offence of a political character
And finally:
48 (1) If the Minister decides not to make a surrender order, the Minister shall order the discharge of the person.

Without a single citation from the law or even mention of the Canadian Extradition Act, Akin concludes:

Canada is a nation of laws with a fully independent judiciary to interpret and enforce those laws. Full stop. 
And the nations of the world — Chretien and McCallum, notwithstanding — can take inspiration and comfort from Canada’s unwavering insistence on the rule of law.







Sunday, 7 April 2019

9,000 SNC-Lavalin Jobs Versus 250,000 Canadians Who Make Their Income from Canola

Canola matters!

Watching CPAC the other day I was taken aback to read the caption that 250,000 Canadians, including 43,000  farmers, make their incomes from the sale of canola.  (See https://www.canolacouncil.org/markets-stats/industry-overview/ for more.) 40% of Canada's canola is sold to China.  China is currently blocking all imports of Canadian canola on the grounds that it contains contaminants.  (Remember when George W. Bush blocked the importation of Canadian beef for two years? I actually know some Canadian beef producers who went bankrupt as a result.)

An exercise in futility

In Canada the common presumption is that the Chinese blockade is retaliation for the fact that we continue to hold Sabrina Meng Wanzhou, the Huawei CFO, under house arrest pending extradition.  This Chinese retaliation is outrageous, unfair, unjust; therefore, it's time for all of us Canadians to get together and scream and howl and whine and throw tantrums at one another.  Feel better?  I don't.

The obvious, legal, just solution:  release Meng Wanzhou

The solution is obvious, legal, just and appropriate: release Meng Wanzhou.  ( See A Dozen Reason the Minister of Justice should Release Sabrina Meng Wanzhou.)  Rather than doing what is obvious and justified our politicians have painted themselves (and us) into a corner with the false and hypocritical claims that in Canada extradition is a "non-political, judicial affair" and Canada is following "the rule of law." No matter how obviously false and how many ways these claims can be disproven, they continue to be repeated.  (Please consult the Canadian Extradition Act.)

In comparison to the consequences of Canada's arrest of Meng, the SNC-Lavalin scandal is minor--unless you are a politician

Despite the serious consequences for individual Canadians of the breakdown of our diplomatic and trade relations with China, Canadian politicians and the media remain relentlessly focussed on the SNC-Lavalin soap opera.  It might seem a stretch to imagine that 250,000 Canadians are about to lose 40% of their income (or 100,000 Canadians are about to lose 100% of their income), but even if the numbers are inflated, they are the tip of the iceberg of consequences about to come our way.  By comparison, the loss of 9000 SNC-Lavalin jobs is the lesser disaster, but even this claim has been debunked.  The company has signed undertakings, agreements and leases requiring that it remain in Canada for years to come.  The only real consequence of the SNC-Lavalin scandal is that, come October, in the game of musical chairs that we call Canadian democracy, some politicians will lose their seats and others will get seats.  The ramifications for individual Canadians will be miniscule. In contrast Canadian bungling of the Meng extradition request has (according to most commentators) led to the imprisonment of two Canadians, the death sentence of a third, and, potentially, massive job and financial loses for Canadians in both the short and long term.  An additional consequence is that, in the eyes of the world, Canada will appear, not just plain stupid, but ready and eager to kowtow to American dictates no matter how spurious and counter-to-Canadian interests the requests.  (See Why Does Everyone Care So Much about the Meng Issue?)

The US Grand Jury indictment is an invitation to release Meng

The US attorneys have unsealed the Grand Jury indictment of Meng Wanzhou and made it available online.  You can see the complete document here:

https://www.justice.gov/opa/press-release/file/1125021/download

Rather than showing Meng's potential guilt, the indictment seems almost like an invitation to Canadian officials to dismiss the extradition request.  If you read the document carefully, you will discover how weak, insubstantial, unprecedented and lacking in evidence the accusations are.  It is pretty dry reading, so let me parse out a few key passages and observations.

Guilt by association

The indictment conflates four defendants.  This conflation has the rhetorical effect of making Meng guilty by association. Let me unpack the obvious point here, because it really matters, even though it's surprising that it needs to be said:  being the citizen of a country accused of spying or corruption does not make you a spy or a criminal.  Being the employee, even the CFO, of a company that is accused of a crime does not make you a criminal.  Being the daughter of a man accused of a crime does not make you a criminal.  Despite the obviousness of this logic, the indictment attempts to make Meng Wanzhou guilty of a crime, simply by associating her with Huawei, with her father, the founder of Huawei, and with Skycom, a German company doing business in Iran.  However, since the Canadian concern is only with the accusations against Meng, it should be a simple matter to separate her, as an individual, from the co-accused--all of them companies--she is being associated with.

Meng is the only individual ever charged for doing business in Iran

To reiterate, Meng Wanzhou is the only individual to be accused in the indictment, the other defendants are companies.  In fact, Meng is the only individual ever to be accused of a crime in this type of case even though there is a long list of companies and financial institutions which have been convicted of the crime she is accused of indirectly committing--moving money in Iran.

Here is a short, selected list of the companies which have already been convicted in the USA of financial dealings with Iran:

J.P. Morgan Chase:  the company paid a fine of $5.3 million

Deutsche Bank was caught making transactions in Iran worth $10.86 billion and was fined $258 million.

Societe Generale, the French bank, undertook $15.5 billion in transactions with Iran and was fine $1.3 billion

Hewlett-Packard sold hundreds of millions of dollars' worth of products to Iran  I haven't found evidence of any punishment having been enforced against HP.

Standard Charter Bank was convicted of doing 100s of billions of dollars of business with Iran and was fined $1.5 billion.

ING, Barclays, Credit Suisse, ABN Amro Bank, and the Australian and New Zealand Banking Group  have all been convicted of contravening American sanctions and paid fines.

Canadian Extradition is political and the decision is up to David Lametti

In all of these cases not a single individual was convicted or even charged with a crime.  The  Minister of Justice, David Lametti, is tasked, according to the Extradition Act, with considering "all the relevant circumstances" and determining if the extradition request is "unfair" or would impose a penalty of less than two years imprisonment on the individual accused, or is based on politics, ethnicity or nationality.  How can the Minister look at this list of precedents and conclude that the extradition request is fair, that it is not political, not based on Meng's nationality or ethnicity, and will likely result in Meng serving more than two years in an American prison--as required by the Act?  Should reason prevail, the Minister according to the law can dismiss the extradition request "at any time,"  yet, I have seen no evidence that the possibility is even being considered or, based on the firing of Canada's ambassador to China, is even allowed to be considered.

What is the evidence that Meng committed a crime?

If Canadian law (the Extradition Act) does not convince you that Meng should be released, consider the evidence against her as spelt out in the indictment.

"Between approximately February 2008 and April 2009, MENG served on the SKYCOM Board of Directors."

She was on the board of Skycom for approximately a year.  None of the members of the board of any companies doing business with Iran which I have listed above has ever been charged with a crime.  The USA has an extradition treaty with Germany, but no other member of the Skycom board, past or present, has been accused of a crime.

The only evidence of a potential crime is a powerpoint presentation and some "talking points" from 2014 which she had deleted from her laptop (and presumably the FBI or CIA or NSA of DoJ were able to recover--while they manage to make deleting an old file seem very suspicious).  I have read through those "talking points" which are in English, but I have to assume English is not the language in which she wrote them, and I can't see any way in which they are relevant.  I invite you to consider them and (if you can) please explain to me how they are evidence of a crime.

As for the powerpoint presentation, which has been under discussion since the day Meng was arrested (and as her lawyer immediately pointed out, she did not prepare herself):

"During the meeting, which took place on or about August 22, 2013, MENG spoke in Chinese, relying in part on a PowerPoint presentation written in Chinese. Upon request by the Financial Institution 1 Executive, MENG arranged for an English-language version of the PowerPoint presentation to be delivered to Financial Institution 1 on or about September 3, 2013. 
19. In relevant part, the PowerPoint presentation included numerous misrepresentations regarding HUAWEI's ownership and control of SKYCOM and HUAWEI's compliance with applicable U.S. law, [. . . .]"
This very thin thread is, apparently, the only evidence that Meng, as an individual, committed a crime.  It is not pure pedantry to point out that "Chinese" is not a language, anymore than Indian, African, Canadian or Brazilian are languages.  Presumably she spoke in Mandarin to the executive of "Financial Institution 1" (as it is identified in the indictment) and the executive in question also spoke Mandarin.  We know from earlier published reports that "Financial Institution 1" is, in fact, HSBC (the Hong Kong Shanghai Banking Corporation).  Anyone who understands translation would also understand that a translated document should never stand as absolute evidence unless it can be carefully compared to the original text.  It seems safe to assume that the Grand Jury could not read Mandarin.

The victims of Meng's crimes

Despite the seriousness of the issues, it is hard to read the expression "Victim Financial Institutions" in the indictment without a sour chuckle.  These "victims" are exactly the financial institutions which have been making billions in profits from sidestepping US sanctions against Iran and other countries (some of which I have just listed above).

As the New York Times pointed out

"In 2017 [ . . .] HSBC provided the prosecutors with Ms. Meng’s 2013 PowerPoint presentation. HSBC said this week that it was cooperating with the government and was not under investigation itself."
The same article details that prior to the Meng investigation
"federal prosecutors had accused it [HSBC] of willfully failing to stop money laundering by customers, including in countries like Iran. To settle that investigation, HSBC had paid a $1.9 billion fine, entered into a deferred prosecution agreement and agreed to have a court-supervised monitor installed inside the bank."

HSBC and the US Attorney make SNC-Lavalin and the Liberals look like lily white, innocent lambs 

(Yes, HSBC got one of those precious "deferred prosecution agreements" that SNC-Lavalin has been begging Canadian prosecutors and politicians for.)  The point here is that HSBC has huge financial incentives for putting the blame for their most recent financial transactions in Iran onto Meng Wanzhou.   The US Attorney for the Eastern District of New York, Richard Donoghue, the former Chief Litigator for CA Technologies, a Huawei competitor, who led the prosecution team in the Grand Jury hearing and issued the original warrant for Meng's arrest in Canada, also appears to have a vested interest in allowing HSBC to escape prosecution and making Meng responsible for HSBC doing business in Iran.

In a democratic country that prizes free speech why has there been no discussion of the merits of Meng's defence?

Since December 1, 2018, when Meng was first arrested (actually since three days before, when Prime Minister Justin Trudeau was informed of the pending arrest) the Canadian Minister of Justice (Jody Wilson-Raybould at the time, now David Lametti) has had the right and the obligation according to Canadian law (the Extradition Act) to "at any time" refuse the arrest and deny the extradition.  Despite the absurdity of the conflicts-of-interest situation, despite the law, despite the weakness of the case against Meng, no-one (with the exception of the now fired John McCallum) has dared to say a word about the merits of Meng's defence in the public domain.

Meng's bail conditions compared to Bernie Madoff's

Despite the urgency of the situation and the potentially dire consequences of the Meng extradition,  Canadians remain mired in media coverage of the endless he-said-she-said melodrama of SNC-Lavalin.  The comment I hear most frequently from Canadians about the Meng extradition is "Oh look, she gets to stay in her Vancouver mansion!"  Just for the record, the Meng bail conditions, a 10-million-dollar bond and house arrest, are exactly the same bail conditions which US courts imposed on Bernie Madoff, the Wall Street titan who ran a 64-billion-dollar Ponzi scheme defrauding pension funds, charitable foundations and thousands of individuals.




Saturday, 5 January 2019

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 school yard 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 Cretien's refusal to enter Georgre 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 have 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 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 per cent 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.


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.