Feds urged to read their history books and call off Meng extradition

By Paul Russell, LegalMatters Staff • The Canadian government should revisit a 160-year-old court decision and reflect on whether it is in Canada’s interest to proceed with extradition proceedings against Huawei executive Meng Wanzhou, says B.C. criminal lawyer Gary Botting.

Meng was arrested by Canadian authorities on a stopover at Vancouver International Airport in December 2018, at the request of the U.S. Department of Justice, which claims she lied to Hong Kong bank executives in 2013 about Huawei’s ownership of an Iranian subsidiary that attempted to sell computer equipment, a violation of U.S. economic sanctions.

Last month, Meng lost a key battle in the extradition process when a B.C. Supreme Court judge ruled the offence she is accused of would be considered a crime in Canada, clearing the way for her extradition hearing to continue.

“How can we rely on what some New York prosecutor says about Meng when her alleged actions may have been misunderstood, misrepresented or mistranslated?” asks Botting, principal of Gary N.A. Botting, Barrister.

“I see real jeopardy here, especially as she is chief financial officer of one of the world’s largest corporations which was in direct competition with several U.S. corporations that were falling behind in the race for 5G market share. I cry ‘Foul!’ in more ways than one,” he tells LegalMattersCanada.ca.

Political outcry expected

“There will be a political outcry such as we have not heard before. The pushback we have already seen should have been enough motivation to refuse this request from the United States, as there is an obvious political agenda behind it.”

Botting, a leading expert on extradition and author of Wrongful Conviction in Canadian Law, says Canadian authorities should review the case of John Anderson, an escaped slave facing extradition to the United States to face charges of fatally stabbing a white farm labourer who tried to arrest him.

According to an article on the Law Society of Ontario (LSO) website, a hearing was held in Brantford, Ont., to determine if there was sufficient evidence to charge Anderson with murder under the laws of what was then Upper Canada. It was decided there was, with the final decision on whether to return him to Missouri – and certain death – left in the hands of Attorney General John A. MacDonald, who would later become our country’s first prime minister.

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Perhaps fearful of making that decision, MacDonald decided the matter should be heard by the Queen’s Bench. Anderson, who had claimed he had acted in self-defence before fleeing north using the Underground Railroad became “an overnight sensation and a cause celebre,” according to the LSO story.

“In the popular press and in the public mind, John Anderson came to symbolize the oppressed Black in America. It was the opinion of many members of the legal profession and the community at large, that the matter was one of natural rights and justice which no law or treaty could circumscribe.”

His high-profile trial began in November 1860 at Osgoode Hall, and for the first time since the Rebellion of 1837, the account states, police were positioned on the front lawns, bayonets fixed. The court decided the extradition should go ahead, though one dissenting judge wrote, “I can never feel bound to recognize as law any enactment which can convert into chattels a very large number of the human race.”

The decision to acquiesce to American demands galvanized the anti-slavery movement in Upper Canada with the objectivity and honesty of the judiciary called into question, the article states.

‘Black lives mattered in the 1860s’

“The Black Lives Matter movement we have today is strikingly similar to what happened in the 1860s,” Botting says. “I guess you could say black lives mattered as much in the 1860s as they do now, at least as far as Canada is concerned.”

In response to the public outcry over Anderson’s potential fate at the hands of a Missouri lynch mob, Botting says an appeal was planned in Britain, which was averted when the Canadian Court of Common Pleas decided the warrant to arrest Anderson had been defective.

“Anderson was released to ultimately settle in Liberia, the integrity of the Canadian judicial system was secured, and Ontario and Toronto took some comfort in having taken its stand on one of the great issues of the age,” the LSO article states.

When the B.C. Supreme Court decided that Meng’s alleged crime met Canada’s dual criminality test, the judge who wrote the decision referenced the Anderson case 160 years earlier.

“Even today, one could construct a scenario in which hypothetical foreign slavery laws could lead to conduct for which the equivalent Canadian offence would be fraud,” Justice Heather Holmes wrote, according to an article in a Canadian Bar Association magazine. Later in the judgment, she notes: “In the final phase of the extradition process the Minister of Justice is expressly required to refuse a surrender order for extradition if such an order would be ‘unjust or oppressive.’”

Botting says the federal government’s authority to stop an extradition hearing is granted by s. 23(3) of the Extradition Act, which reads: “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.”

Rule of law misunderstood

Despite having that power, Prime Minister Justin Trudeau claims he is respecting the rule of law by not interfering with the Meng case.

“This is a complete misreading of what the rule of law means,” says Botting. “Rule of law means we follow the law as it is written, with the courts providing checks and balances. The ultimate power resides with Parliament, which makes the law. It is the executive’s responsibility to implement and enforce the law and the judiciary’s responsibility to uphold it.

“The government has the discretion to stop this hearing for the very reason that it could be anticipated, and still is anticipated, that this extradition proceeding, based as it is on the whim of a New York prosecutor, is doing much more harm than good to our country,” he explains.

Botting said he recognizes how difficult it is for politicians “to admit they were wrong, and eat humble pie – that is one endearing quality that sets us apart from the United States.”

The Canadian Security Intelligence Service says Meng’s arrest has already sent “shock waves” around the world and will have significant consequences for Canada, according to a CBC news article, as China has taken steps to cut off Canadian exports of canola and meat. Documents filed this week by Huawei with the Supreme Court of British Columbia indicate that CSIS was informed of Ms. Meng’s impending arrest by the FBI well in advance, according to an article in Global Times.