"Judicial Independence" in Canadian Extradition Law

The Canadian Extradition Act

There is no "judicial independence" in Canadian extradition law.  Louise Arbour,  former UN High Commissioner for Human Rights, justice of the Supreme Court of Canada and Chief Prosecutor of the International Criminal Tribunals, has been trying to educate the Canadian public on this basic fact in Canadian law. The Canadian Extradition Act is available online and is clear (and I encourage you to click the hyperlink), in Canada, extradition is, ultimately, the responsibility of the executive branch of government (meaning the politicians we elect) not the judiciary.  Despite the obvious letter of the law, Prime Minister Justin Trudeau continues to stubbornly repeat the fallacy that "judicial independence" must be maintained in the Meng extradition trial. His use of the phrase "judicial independence" is proof that he has never looked at the Canadian Extradition Act.  Imagine: in a matter of minutes, anyone with an internet connection and basic reading skills can know more about Canadian extradition law than the Prime Minister of Canada.  Be one of those people.

I urge you to click on the link:  The Canadian Extradition Act.

The Definition of absurd

The definition of absurd is "wildly irrational, illogical and inappropriate."  I bother to define "absurd" because the word can sometimes imply ridiculous, mocking, even comic.  But in this case, the issues are deadly serious, especially for Michael Korvik and Michael Spivak who could spend years in a Chinese prison  (Canadian extradition cases have been known to take ten years) while the Canadian government dithers and does nothing.

The Most basic rule of logic

The most basic rule of logic is that if your premise is wrong, whatever conclusions or arguments follow from the premise will also be wrong.  For over 18 months, Canada's political leadership and virtually the entirety of its fourth estate have adopted a false premise summed up in the expression "judicial independence."  By adopting this false premise, Canadian politicians, the media, and numerous public figures have unleashed a litany of absurdities, non-sequiturs, and obfuscations which can only lead to delays and damage to Canada and Canadians.  Consider some of the claims you have, no doubt, already heard.

We are abiding by Canadian law

 If you dared to click the link to the Canadian Extradition Act, you know this goes beyond being illogical, it is an outright lie.  The only way to claim that Canada is being "law abiding" is to ignore the law, the Canadian Extradition Act, which we are supposedly abiding by.

We had no choice: Canada is respecting its extradition treaty obligations

How many times have you heard these claims?  The word "obligations" is more than misleading; it is simply wrong.  Extradition treaties do not create the obligation for Canada to arrest anyone, and the Treaty on Extradition Between the Government of Canada and the Government of the United States of America is no exception.  The treaty lays out the circumstances and a list of the 30 crimes for which Canada will consider the American "request" that a person be extradited.  You can do a word search of the Treaty (click edit/find in your browser, then type in the word oblige and any of its cognates). The word "oblige" or its cognates does not appear a single time in the Treaty.  The word "request" and its various forms appear . . . a lot.  (I stopped counting after I had found the word used 50 times.)  The Public Prosecutor Service of Canada is explicit that "Extradition treaties do not themselves create an obligation or a power to arrest in Canada."  Still, Canadian politicians throw up their hands saying "we had no choice" and Canadian journalists piously repeat the falsehood.

Trump made it political

Invoking the name "Donald Trump" has become a means of announcing that the universe is absurd and, to quote Becket's Waiting for Godot, "there is nothing to be done."  Blaming Trump means no-one feels responsible to do anything.  Of course, Trump's public announcement that he would use Meng as a bargaining chip with China was immediate grounds for dismissal of the extradition request.  But, guess what, only the Minister of Justice can take that step.

One school of thought is that arresting Meng on December 1, 2018, the same day Trump was having a one-on-one meeting with China's President Xi was a deliberate attempt to undermine the American President orchestrated by his national security advisor John Bolton.  (If you click on this link to the Guardian article from 6 Dec 2018, you will see Bolton quoted as saying he didn't know if Trump had been informed of the Meng arrest.  My guess:  if his national security advisor didn't tell him, Trump probably didn't know.  Also, in the article, Bolton makes it clear that Meng was arrested because of NSA concerns about Huawei, not because she had committed bank fraud.)

"Trump made it political" clouds the fact that extradition is, by law, political in Canada.  Justin Trudeau made the case impossibly "political" when he dismissed Canada's ambassador to China simply for saying that Meng had a good case against extradition.  How can David Lametti, the Minister of Justice, do his job and release Meng after Justin Trudeau and Chrystia Freeland have repeated a hundred times over in the last 18 months that extradition in Canada must be done without political interference?  Has anyone heard from our Minister of Justice recently?  Robert Fife, Globe and Mail Bureau Chief, described Minister of Justice, David Lametti, as "becoming a joke," and "every time they let him out he says something stupid."  On Feb. 7, 2019, three weeks after he had been appointed Minister of Justice, The Star reported:

Justice Minister David Lametti says 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 [ . . .].

 I haven't heard anything from the Minister of Justice since.  Have you?

Canada is being bullied; we need to get tough with China

If you are wondering by whom Canada is being bullied, you need look no further than Adrienne Arsenault's interview with former National Security Advisor John Bolton.  

When asked  about what the USA was doing about the imprisonment of Canadians Kovrig and Spavor, John Bolton replied:  "it has been spoken about publicly in the administration."  This is how the USA is getting tough with China.

Canada is being played by the USA and being left to its own devices to deal with China.  Bolton's response to Canada's dilemma:  "If you want to leave NATO, if you want to get rid of our protection militarily, please go ahead and do it.  If that's what you want.  Canada is free to do it."

When Arsenault asked, "How does Canada get its Canadians home from China at this point?"

Bolton's response:  "Look, I think we all want to get them home as soon as possible.  America has had its share of hostages around the world. If you don't like it, Ma'am, you're free to go ally with China.  If you think that's what your country wants to do.  Think about that long and hard."

There's a difference between China imprisoning two Canadians for no reason and Canada's arresting Meng on legal grounds

Yes, there is a difference.  It is a difference of degree.  It only holds as a difference of kind, if Canada's grounds for holding Meng are legal according to Canadian law.  Back to the Canadian Extradition Act and the fact that the Minister of Justice and only the Minister of Justice (not a judge) is tasked with looking at all the circumstances and deciding if the request is just and justifiable.  Only the Minister can consider if Richard Donaghue's warrant is a conflict of interest.  Only the Minister can determine if nationality, ethnicity, economics, or politics play a part in and thereby dismiss the extradition request.  Only the Minister can look at the entire situation and consider if Meng will, in fact, be tried and sentenced to at least a year in prison as required by the Treaty, or if the end result will likely be a fine or some kind of negotiation--which would be grounds for dismissing the request.  Only the Minister can look at the entire situation and ask:  "Has anyone ever done jail time for the kind of thing that Meng is being accused of?" Everywhere the Minister of Justice looks, he is likely to see a reason to dismiss the extradition request.  The Canadian response:  "judicial independence" as if the Minister of Justice is not allowed to act.  Have I mentioned that Canadians need to study the Canadian Extradition Act?

We can't release Meng because the Chinese have taken two Canadians hostage

Having ignored the letter of Canadian law for 18 months, we now find ourselves facing the absurd argument that we cannot release Meng because the Chinese have imprisoned two Canadians and acquiescence would encourage future hostage diplomacy.  Does anyone really believe that Canada is in a position to give China lessons on international diplomacy?  That anything Canada does will change Chinese behaviour on the international stage?

Arresting two Canadians in China, as I pointed out in December, 2018, has made the optics of releasing Meng more difficult for Canada.  At the time, the common observation was that the arrests of Kovrig and Spavor were for local consumption in China; that is, the government had to show that they were doing something about the arrest of Meng.  The need for two governments to save face with their constituencies has created this absurd standoff.  Neither government has solid legal grounds for their actions but before any change can take place, one of these governments has to admit the fact.

A Majority of Canadians oppose a swap of Meng for the Michaels

The UBC survey done last October concluded that 39% of Canadians felt arresting Meng was a mistake and 35% feel she should be released before the judicial process has concluded.  More recently:

the latest study from the non-profit Angus Reid Institute finds Canadians supportive of the federal government’s position of letting Meng’s extradition case play out in the courts. Seven-in-ten (72%) feel this way, while a minority (28%) say that they would rather the government negotiate a way to exchange Meng for Canadians Kovrig and Spavor.

What does this latest poll prove?  To fully answer the question, you have to look at the question that Angus Reid asked, and the answers that respondents were allowed to give.  This is what you get:

In other words, if you are forced to accept the false premise that extradition in Canada is an "independent court process" do you follow the law, or break the law and do something else? So yes, Canadians think of themselves as law-abiding, which is easy to do if you ignore the law . . . the Canadian Extradition Act.

Now What?

David Akin of Global News has argued that it's too soon for the government to intervene in the Meng extradition. According to Akin, the Minister can only act at the end of the judicial process (in 8 to 10 years from now?).  Commenting on CBC News last  week, Susan Riley, said it was "too late for the government to intervene."  Of course, she has a point.  After 18 months of repeated, spurious claims that the government cannot interfere, how will the government explain its actions when it is eventually required to follow the law and for the Minister of Justice to make his decision?

There is only one way, that I can see, to escape the perfidy and absurdity.  A lot of Canadians will have to browse the Canadian Extradition Act. Is there any way that is ever going to happen?  Not likely.  Then again, what if you did?  And suggested the same to a few of your friends?

How Did Canada Lose to Norway and Ireland in Its Campaign for a UN Security Council Seat?

The Basics:  

• The United Nations was formed in 1945, at the end of World War II.  There were 51 member countries.  Harry S. Truman was President of the USA and the UN's home was established in New York City.
• The goal of the United Nations is world peace and security.
• The Security Council is the power center of the UN.  It has five permanent members, the "big" winners of WWII:  the USA, France, the UK, Russia, and China.
• On a rotational basis, other countries are elected by all 193 members of the UN General Assembly to occupy temporary, 2-year positions in the Security Council.
• There are currently 10 temporary (non-permanent, 2-year) positions in the Security Council. The permanent members have remained the same since 1945.
• The non-permanent positions are elected on a geographical basis, so Canada was competing against Ireland and Norway in what is known as the "Weog block" (Western Europe and Others).
• In the 2020, three-country competition for two Security Council seats, Canada came in third behind Norway and Ireland.

Why did Canada lose?  The Said and the unsaid.

Here is a list of reasons I have surmised ("the unsaid") and I have read ("the said" which someone else has surmised):

1.  Canada is a strong supporter of Israel.  According to Wikipedia, citing a CBC commentary by Evan Dyer, Canada's "consistent voting record in support of Israel" was an obstacle to its election.
2. Over time, Canada has had a Security Council Seat for twelve years.  In other words, Canada has won this election process six times.  It was someone else's turn.
3. Norway spent 2.8 million dollars campaigning for a seat; Canada only spent 1.74 million.  (Who knew there were campaigns for the seats?  Didn't we just put SNC-Lavalin on trial for paying bribes to foreign officials?)
4. As part of the campaigning, Canada gave out free tickets to a Celine Dion concert.  Ireland gave out free U2 concert tickets.  (Turns out Bono is more popular in the UN than Celine.)
5. Gender equity.  (This so ironic, it's almost funny.)  In Canada, we might think of our Prime Minister as the Poster Boy for gender equity.  The Security Council, as it turns out, is also very interested in gender equity.  The Norwegian Ambassador to the UN and the Irish Ambassador to the UN are both women.  Their election added two more women to the Security Council.   Canada's Ambassador to the UN and our candidate for the Security Council was Mark-André Blanchard.
6. It's a fair guess that China did not vote for Canada.  Nor would any country under Chinese influence and, if the rumours are even half true, that would be a lot of votes.  After the vote, Norway's Prime Minister expressed the intention "to remain on good terms with China, Russia, and the United States."  Something Canada seems to have trouble doing.
7. No-one I have read is saying so but I think it is a fair bet that the Trump White House would be unlikely to endorse a Canadian presence on the Security Council.  Trump's animosity toward Trudeau is well documented.  I can recall at least two incidents in which Trump described Trudeau as "two-faced" or words to that effect--The G7 and Davos.
8. Why vote for the American lapdog?  Despite the exchange of insults between the President and the Prime Minister, Canada is perceived as being incapable of opposing or unwilling to oppose US hegemony.   The campaign for a Security Council seat has been going on at the same time as Canada has been holding Meng, the Huawei CFO, under house arrest to honour a US extradition request.  The arrest has been counter to Canadian interests while it serves American corporate and trade interests.  Historically, Canada has been elected to the Security Council once every 10 years under both Conservative and Liberal governments.  It has now been 20 years since Canada last held a seat.  Canada's willingness to sacrifice its own interests in order to accommodate an American "request" leads to the conclusion that electing Canada would simply be giving the USA another voice at Security Council meetings.

Does it matter?

According to Andrew Scheer, who seems to be in permanent bitch mode these days, the campaign was Justin Trudeau's "personal vanity project."  However, when the Harper/Scheer Conservatives failed to win a Security Council seat in 2010 "foreign affairs minister John Baird attributed the failure to win a seat to principled positions taken by Canada on certain international issues."  

I have gone looking for answers to the question "What are the benefits of a temporary seat on the Security Council?" and the answers have been neither tangible nor convincing.  "Having a seat at the table" is an interesting synecdoche but what does it really mean?  It's prestigious?  How does that prestige play out to be of any real benefit to Canada?

According to the rules of the Security Council, any one of the five permanent members can veto any proposal presented.  Hypothetically, if Canada were a member and presented an idea, all five of China, Russia, France, the UK, and the USA would have to agree before there could be any further discussion.  If all five permanent members wanted an idea to be discussed, they certainly wouldn't need Canada to propose it.  Or is the Security Council really about backroom deals, corridor conversations, and whisper campaigns?  If so, do they really need to be Security Council members in order for Ambassador A to lean over to Ambassador B and say, "Hey, why don't you let our citizens out of jail, and maybe we can sign a trade deal!"

Is the UN a dysfunctional bureaucracy?

The theoretical goals of the UN--"world peace and security"--could not be more desirable.  In practice, it appears to have fallen prey to the syndrome which plagues so many institutions, (governments, political parties, universities, security and police forces, even non-profit organizations and charities): a preoccupation with its own bureaucratic survival over the underlying raison d'être for which it exists.

Seventy-five years after it was first formed, Professor of International Relations, Jean-François Thibault, asks, "is the Security Council still relevant in its current form?"  Thibault is "not optimistic." We can only hope that the organization reinvigorates the goals to which it aspires before it expires.

Addendum

An astute reader of this blog asked me if there has ever been a case of the non-permanent members of the Security Council affecting the outcome of voting on a particular resolution.  I have browsed 500 (of the 2500 available) examples of Security Council votes.  In these 500 cases, there was not a single example of one of the 15 members of the Security Council voting against a resolution.  In a handful of cases, there were two or three abstentions.

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 requests	Arrests	ATP’s Issued	Order of Committals	Total number of discharges/ refusals	Withdrawals	Total number of people surrendered
2008-2009	97	84	67	40	0	1	61
2009-2010	118	65	63	30	1	3	49
2010-2011	132	71	58	16	1	6	61
2011-2012	117	93	72	31	0	2	81
2012-2013	101	95	66	34	3	6	65
2013-2014	53	49	43	34	1	7	58
2014-2015	47	53	38	29	1	5	52
2015-2016	44	34	30	29	0	2	41
2016-2017	40	35	32	21	1	6	49
2017-2018	49	47	38	23	0	2	35
TOTAL	798	626	507	287	8	40	552

 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 offense 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.

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         

HSBC, "the victim," doesn't want to prosecute

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?

It's all about Richard Donoghue, a CA Tech employee

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.

Do Canadian journalists do any research?

"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.

Is the Meng arrest justified according to Canadian law?

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.”

Who in Canada is allowed to question Meng's arrest?

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 [ . . .].

Finally the questions is asked:  and the answer is . . . 

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.

According to Canadian law, extradition is a political decision

"The Minister" in this case is Minister of Justice.  So yes, a politician, 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.

 How can any Canadian claim we are "following the law"?

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.

Ignoring the law, then bragging about our "unwavering insistence of the rule of law"

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.

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 Reasons 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 focused 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 minuscule. 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 losses 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 fined $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, any more 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.