Showing posts with label Meng extradition. Show all posts
Showing posts with label Meng extradition. 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.


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.




Wednesday, 6 March 2019

A Comparison of Scandals: SNC-Lavalin Versus the Extradition of the Huawei CFO

The collapse of the Liberal Government

Months away from an election, with the resignations of Jody Wilson-Raybould (Veterans Affairs Minister), Gerry Butts (Prime Minister's Chief of Staff), and now Jane Philpott (President of Treasury Board), the Liberal Government is collapsing under the weight of the SNC-Lavalin scandal.  Is the Government being brought down by the "right" scandal?

Remediation legislation tailor-made for SNC-Lavalin

In September, 2018, the Liberal Government passed the "Remediations Agreement" legislation, tailor-made to allow SNC-Lavalin to escape prosecution for bribing public officials in Libya.  Although the legislation was an amendment to the Criminal Code, it was passed as a part of a Budget Implementation Act (Bill C-17).  No doubt to the surprise and consternation of the Liberal Government, the Public Prosecutors Office decided to proceed with the criminal prosecution of SNC-Lavalin rather than negotiate a "remediation agreement" as permitted by the newly-passed legislation.

The origin of the scandal

In most chronologies the scandal began when Jody Wilson-Raybould had a meeting September 17, 2018, with the Prime Minister and the Clerk of the Privy Council, Michael Wernick, and they raised the economic and political implications of the Public Prosecutor's decision to proceed with criminal charges against SNC Lavalin.  However, as law professors Jennifer Quaid and Emilie Taman point out an op-ed in the Financial Post, "Ottawa officials keep pushing myths about 'remediation agreements' amid the SNC-Lavalin scandal," the mess began with the original bill which was rushed through as a budget bill without sufficient consultation, reflection  or scrutiny.

"National economic interest" cannot be considered

Quad and Taman confirm that "In the specific context of prosecutions under the Corruption of Foreign Public Officials Act (under which SNC is charged), the national economic interest is explicitly excluded as a relevant factor."  In addition, they explain that "The prohibition against taking it [national economic interest] into account is taken from the OECD Convention on Corruption and is designed to prevent countries from favouring local businesses in the enforcement of corruption offences. We would be at odds with our major trading partners if we did not abide by this rule." (The Organisation for Economic Co-operation and Development is made up of 36 member countries including Canada, the USA, the UK, etc.)

Paying bribes on foreign and on Canadian government contracts

I remain convinced that the Canadian extradition of the Huawei CFO is a more significant scandal.  However, Radio Canada's Enquete episode on SNC-Lavalin has caused me to waiver in my conviction that SNC-Lavalin's crimes are water under the bridge. (There is an intended pun here.) As the episode outlines, SNC-Lavalin established a pattern of paying brides in Libya and Tunisia, then continued the practice in Canada paying bribes, most notably to Dr. Arthur Porter, Director General and CEO of the McGill University Health Center, and Michel Fournier, the Director of the Federal Bridge Corporations responsible for construction on the Jacques Cartiers and Champlain bridges in Montreal.

SNC-Lavalin crimes and punishments

Fourrnier, who had extensive and close ties to the Liberal Party and was appointed to the Federal Bridge Corporation by the Liberal Government, was convicted of accepting 2.3 million dollars in bribes from SNC-Lavalin and sentenced to five and half years in prison--the longest prison sentence yet imposed.  However, Fournier is now out of prison having served less than a year of his sentence.  Arthur Porter and Yanai Elbaz were charged with receiving 22 million in bribes from SNC-Lavalin.  Elbaz pleaded guilty and was sentenced to 39 months; Porter died in Panama before he could be brought to trial.  The former CEO of SNC-Lavalin, Pierre Duhaime, pleaded guilty to  "helping a public servant commit breach of trust" and was sentenced to 20 months of house arrest. Riadh Ben Aissa, an SNC-Lavalin Executive responsible for construction, pleaded guilty to forgery and money laundering in Switzerland and has been sentenced to 51 months.

There has never been an SNC-Lavalin trial

The culprits have been caught and convicted; why pursue further investigations and another trial?  As the investigative journalists of Enquete point out, a number of people have been convicted of receiving bribes from SNC-Lavalin, but no-one from Lavalin has ever been convicted (or charged) with paying a bribe.  Where did the money come from?  And where has it gone?  There has never been an SNC-Lavalin trial.  All the felons have negotiated their convictions and sentences, which implies that all the the details, strategies and mechanisms of their crimes remain undisclosed.

Remediation requires that the company comes clean

In this context we can better understand, the Public Prosecutor's determination to go to trial.  As Quaid and Taman point out, the protection of employees and stockholders "is not sufficient to justify a RA. There is a good reason for this: In order for RAs to work, they have to focus on promoting compliance, which presupposes that the company is willing and able to admit it acted badly and to change its ways."

How can the prosecutors confirm compliance if they remain in the dark about how the company's illegal activities have operated in the past?  As the investigators of Enquete underlined, remediation agreements can easily become "corruption tax" [my translation]:  companies pay bribes or commit fraud and when they get caught, under remediation, they pay a fine, which they can easily afford, and this process becomes business as usual.

Is the scandal political, ethical or criminal?

How big a scandal is the Liberal Government's attempt to pressure the Ministry of Justice into arranging a remediation agreement for SNC-Lavalin?  The political fallout is now obvious.  We can easily imagine the scandal costing the Liberals the upcoming election.  The Liberals would be more than happy to contain the scandal as an "ethical violation" and accept a slap on the wrist from the Ethics Commissioner.  Were the Liberal Government's actions criminal?

The Relationship between the Attorney General and the Director of Public Prosecutions is governed by precise and measured legislation.  The purpose of the Public Prosecutor's Office is to ensure the "independence of the prosecution decision-making function from inappropriate political control, direction and influence."  On the other hand, the act also gives the Attorney General the power to "issue directives in respect of specific prosecutions" and even "to intervene in proceedings or to assume conduct of prosecutions."  Jody Wilson-Raybould had the power to intervene in the SNC-Lavalin case.  Her intervention, in itself, would have been "extraordinary" (a first, in fact, as pointed out in the Justice Committee hearings) but it would not have been criminal.  However, had she intervened, the reasons being suggested for her intervention would have made her actions illegal and criminal.

If she had intervened for economic reasons she would have been acting in contradiction to the law governing Remediation Agreements which clearly states that "national economic interests" cannot be considered.  If she intervened for political reasons, to save votes in Quebec, she would have been contravening the act which established the Public Prosecutors Office.  In other words, if she had succumbed to the pressure, she and the Liberal Government would have been guilty of criminal acts--contraventions of both the Remediations Agreements act and Public Prosecutions act.  The Liberal Government should be grateful for her stalwart defence of the law and preventing them from committing criminal acts.

How Gerry Butts avoided answering Justice Committee questions

Listening to Gerry Butts before the Justice Committee, I was struck by how he invoked "not wanting to caste aspersions," "not going to answer hypotheticals," and "not being a lawyer" with such frequency that his two and a half hours of testimony resulted in very little substance.  His rebuttal of Wilson-Raybould's detailed testimony was largely about character; in the vein of "I'm a good person, so I wouldn't say or do that;"  "they are good people, so trust me, they wouldn't say that"--which he used to dodge every single question about whether a Wilson-Raybould claim was true or false.

"National economic interests":  finally the question gets asked!

As I predicted in my previous post, his reiterated and often emotional justification for the government actions (meaning the pressure they put on Wilson-Raybould, but didn't really put on her) was 9,000 jobs--exactly the argument which the Public Prosecutor was not allowed to consider according to the Remediations Agreement law.  Surprisingly no-one on the Justice Committee raised the problem of this contradiction, even though Conservative MP Michel Rempel raised exactly this point in the House of Commons.  Does this absence of Conservative comment in the Justice Committee mean that a Conservative Government might be planning to offer SNC-Lavalin a Remediation Agreement if elected in six months?

Only Erin Weir, the Saskatchewan MP from the  Co-operative Commonwealth Federation (CCF), asked a question which came close to exposing the contradiction between Butt's liberal mantra of 9000 jobs and the letter of the Remediations Agreement law.  Unfortunately, Weir misidentified the law as a DPA (deferred prosecution agreement) and was himself misidentified by CBC as an NDP MP.  Gerald Butts was able to sidestep the question.

It took another two and a half hours in the afternoon of the committee hearings before Charlie Angus of the NDP and Elizabeth May,  Leader of the Green Party, raised the question, one after the other, of the provision within the Remediation Agreement legislation that "national economic interests" were not to be considered.  (I am delighted to report that within two hours of the hearings the National Post picked up on exactly the argument I would make.)  In response, Michael Wernick showed that he was very familiar with the expression "national economic interest,"  mumbling that "if you consult a lawyer they might have a different interpretation" then offered that the "public interest" of 9000 jobs was somehow different from "national economic interest."  The second time the question was asked, Wernick brusquely replied that this paragraph was "cut-and-paste from OECD regulations," conceding how haphazardly the Canadian legislation was put together, that he himself wasn't certain how the law should be  interpreted even though he was adamant the "9000 Canadian jobs argument" was acceptable, and since we just copied it into our Criminal Code, it really doesn't count, right?

Fallout from the Meng extradition?

In the meantime, while Canada and Canadians spent the day focused on the arrangement of the deck chairs, little attention has been paid to the fact that the ship may be sinking.  Meng spent 17 minutes in court today and her next hearing is set for May 7.  Mission accomplished for corporate America with collusion from the Canadian government.  Huawei's CFO and top global sales person remains under house arrest,  while exactly what she (as an individual) is accused of and what the evidence against her is remains under cover of darkness.  China refused a 5-million-dollar shipment of canola from Canada and "Canada’s economy practically grinds to a halt — and nobody saw it coming." Canadian exports to China were valued at $21.5 billion last year but that trade is shrinking fast.  Two Canadians are in prison and a third awaits execution.  No expression of sympathy or outrage from Canadian politicians will have any effect on their fates.

Laws that permit Government intervention and those that don't:  We got it backwards!

In the meantime the Liberal Government has clearly attempted to interfere in a judicial process which Canadian law clearly prevents them from interfering with--the prosecution of SNC-Lavalin.  And in the legal case (the Meng extradition) where the law clearly spells out that political (Minister of Justice) action is not just accepted but expected and required, the government seems paralyzed.  Listening to Robert Fife, Globe and Mail Bureau Chief, describing the new Minister of Justice, David Lametti, as "becoming a joke," and "every time they let him out he says something stupid" fills me with trepidation.  This "joke" is tasked with determining the outcome of the Meng extradition and our future relations with China.

Addendum

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.