Recent U.S. government efforts to extradite a number of foreign defendants have sparked extensive debate and raised many issues and questions regarding international extradition law and practice. The United States has been the subject of intense scrutiny from legal professionals, the press, political authorities, and other states, starting with the Julian Assange case and continuing with even more high-profile cases like Joaquin Guzman alias El-Chapo.
Extradition treaties are meant to function similarly to contracts and bind the parties to detain and deliver a person to a foreign treaty partner upon demand, assuming all of the treaty conditions are satisfied and no exceptions apply. Extradition agreements are individually negotiated and may differ in order to take into account the legal frameworks and priorities of the parties engaged in the negotiations, but they typically have some commonalities. They lay out specifications for the nation making the extradition request (the requesting state) as well as the nation receiving the request (the requested state).
Lack of sufficient evidence and manipulation of evidence are some of the main arguments against extradition. Therefore, the subject may argue that the information in the request does not satisfy the necessary legal standard, which in the United States is probable cause if the extradition request is based on active criminal charges (unless the treaty provides for a higher standard) or that the said evidence is completely untrue and trying to manipulate the process. This has come up recently in relation to the case of Meng Wanzhou.
Arrest and Detention
Meng Wanzhou is a Chinese business executive. She is the deputy chair of the board and chief financial officer (CFO) of Huawei which was founded by her father Ren Zhengfei. She started her career as a secretary at China Construction Bank after completing her undergraduate degree in 1992 and then moved to the newly formed Huawei company that her father had founded the following year. In 1997, she went on to graduate school at China’s Huazhong University of Science and Technology, where she received a master’s degree in accounting. She has worked as the director of accounting, the CFO of Huawei Hong Kong, and the head of international accounting. She moved to Vancouver, Canada, and obtained permanent residency in 2001.
Canada Border Services Agency officers detained Meng Wanzhou, the deputy chair of Huawei’s board, upon her arrival at Vancouver International Airport on December 1, 2018, and questioned her for three hours. Following a provisional extradition request from the United States, the Royal Canadian Mounted Police arrested her on charges of fraud and conspiracy to commit fraud in an effort to evade American sanctions against Iran in accordance with the Canada–US extradition treaty. The warrant was based on claims that Wanzhou had cleared funds that were were purportedly intended for Huawei even though they were really intended for Skycom, a company claimed to be fully controlled by Huawei and that was accused of doing business with Iran in violation of sanctions.
She was eventually granted bail in the amount of $10 million, with conditions including electronic monitoring and the surrender of all passports that could be used to leave the country. According to the Canada-US extradition treaty, the US could only file a formal extradition request within 60 days of a person’s arrest. The United States Department of Justice formally charged Meng with financial fraud on January 28, 2019, specifically bank and wire fraud as well as conspiracies to commit those crimes.
The extradition process was formally initiated on March 1, 2019, when the Canadian Department of Justice issued an Authority to Proceed with the hearing for the extradition request of the US. The Canadian federal government, the Royal Canadian Mounted Police, and the Canada Border Services Agency were named in a lawsuit filed by Meng’s legal team on March 3, 2019. The lawsuit claimed that CBSA agents wrongly arrested, searched, and questioned Meng before informing her that she was under arrest. The case was filed in the British Columbia Supreme Court. Since Meng’s arrest coincided with the arrest of two Canadians in China, many parties were following the proceedings including pressmen and Canadians who believed this was retaliation on the part of the Chinese government.
Her legal team asserted that the Canadian government has been holding back crucial information regarding the circumstances under which Meng was detained at the Airport, which could potentially be an infringement of her constitutional rights at the start of the extradition procedure to the United States. Meng’s defense claimed in court that the case should be dismissed because her detention was an abuse of process; the fraud charges she was facing in the US are for crimes that do not exist in Canada; and the U.S. government’s extradition request signifies an abuse of power. The court ruled that the RCMP and the CBSA must defend the level of evidence that has been disclosed thus far regarding Meng’s prior detention by the CBSA and subsequent arrest by the RCMP.
Additionally, Meng’s defense attorney asserted that she did not violate any American or Canadian laws and that the US had purposefully omitted crucial details from two PowerPoint slides that had demonstrated that Meng had been honest with HSBC regarding the nature of the relationship between Skycom and Huawei. This tapped into the concept of double criminality; a basic principle of Canadian extradition law. In Canada, a person cannot be extradited to face punishment in another country for behaviour that would not be considered criminal in Canada.
Wrongful Arrest, Detention, Search and Seizure of Property
The defense team for Meng claimed that the two agencies had conspired illegally to hold Meng Wanzhou. Her defense team alleged a conspiracy on the part of the RCMP and CBSA to hold her under a supposed immigration check without instantly notifying her of her arrest and then went on to arrest her three hours later. The defense argued that this method of arrest was illegal because the warrant called for her immediate detention and it had violated Section 10 of the Charter, which mandates that Meng be informed of her charges as soon as she is taken into custody.
The defense claimed that the three hours of questions, which covered her business dealings with Iran, and the fact that the CBSA officers failed to take notes during some of the questioning are proof of a plot and an illegal arrest. Along with plans to send her luggage to the FBI if they were interested, the agencies also managed to obtain and share the passcodes for her devices.
Violation of Extradition Charter
Meng Wanzhou’s defense lawyer claimed that the RCMP officers who arrested her had broken Canadian extradition laws by allegedly sharing information with the FBI. The defense claimed that on October 3, 2019, a staff sergeant of the RCMP sent an email to the FBI containing Meng’s devices’ serial numbers, SIM card numbers, and international mobile equipment identity (IMEI) numbers. Six police officers all stated in affidavits that they did not exchange Meng’s devices’ electronic identification numbers. However, a Staff Sergeant mentioned that he did talk to John Sgroi, the FBI’s legal attaché and shared the information. Due to discrepancies in the RCMP’s emails and notes, the defense requested the release of additional documents. The court granted the defense’s request for the release of additional documents, citing significant gaps in that evidence.
Fabricated Testimonies and Evidence
When he claimed that the RCMP accidentally came into possession of Meng’s electronic device passcodes in October 2020, a CBSA officer was accused by the defense of completely fabricating his testimony. Tony Paisana of the defense team pointed out that the CBSA has nowhere recorded the error. The testimony of the Canadian officers was characterized as careless and purposefully false by a different attorney, Mona Duckett. For instance, it was improbable that officers would find proof of Meng’s espionage on their own. The defense claimed that the border agents had broken the law and that the CBSA’s inquiries into Meng were only useful to an American audience and irrelevant to Canada.
A PowerPoint presentation Ms. Meng, the chief financial officer of Huawei Technologies Co. Ltd., gave to representatives of the international bank HSBC in a Hong Kong tea room in 2013 is the subject of the fraud accusation leveled against her. She allegedly lied about Huawei’s affiliation with Skycom Tech Co. Ltd. so that it could conduct business in Iran and circumvent U.S. sanctions, according to the United States. The main supporting evidence for the extradition request was the possibility of criminal or civil liability for banks that provided U.S. dollar transactions related to Iran through the United States.
However, Ms. Meng’s attorneys claim that critical information is omitted from the PowerPoint presentation’s U.S. summary: A slide demonstrating the collaboration of Huawei and Skycom in the Iranian market, a claim that Skycom was in fact under control, and knowledge of the partnership among senior HSBC employees, including the bank’s deputy head of global banking for China. Also, HSBC can clear U.S. transactions through an alternative system based in Hong Kong – where there is no risk of violating sanctions – if it chooses to do so, Ms. Meng’s lawyers further argued.
Additionally, they argued that it was unacceptable for the U.S. to have omitted this information from the case file it provided to Canada. The U.S. theory of the case, according to him, is implausible because it depicts an innocent bank being deceived after relying solely on a PowerPoint presentation to make a significant decision regarding a significant customer.
Canadian attorneys with experience in extradition proceedings said it is very challenging to contest the evidence against a person because they are unable to raise defenses or question the validity of the evidence from the requesting state, in this case, the United States. The Court, however, took this into account and chose to rule on the question of abuse of process as well as whether there was enough evidence to support the claim.
The Court stated that it found it difficult to understand American justifications for what constituted doing business in a way that complied or did not comply with Iranian sanctions. The prosecution did not define legal commercial activity in Iran in the records they provided. According to the prosecution, Meng had a responsibility to distinguish between good and bad business in relation to U.S. sanctions law. According to the prosecution, Meng implied to HSBC that she was aware of the boundary and assured it would be safe for them not to cross it. In essence, the Court stated that it had a great deal of trouble comprehending how the Record of Case (ROC) that the US had provided to the Canadian authorities in support of their extradition request demonstrated a clear factual or contextual basis for their allegation of criminality.
Deferred Prosecution and Dismissal
According to multiple reports, the US Department of Justice proposed a defered prosecution agreement in which Meng would plead “guilty” to the charges and a large fine would be paid in exchange for the dismissal of the extradition request and criminal proceedings.
After entering into a deferred prosecution agreement with the Department of Justice, Meng Wanzhou admitted she helped misrepresent the relationship between Huawei and its subsidiary Skycom to HSBC in order to transact business with Iran. However, she was not required to enter a guilty plea to the fraud charges or pay a fine. Meng left Canada on 24 September 2021 and on December 2, 2022, the presiding judge dismissed the charges against Meng following the US government’s request.
U.S. officials requested Meng’s extradition so that they could prosecute her for allegedly helping her firm break sanctions against Iran’s government. But since this was a unilateral U.S. policy, it would have no legal weight in China or, for that matter, Canada or anywhere else in the world unless it was ratified by the United Nations with a large enough vote margin to demonstrate an opinio juris comunis.
There has been fierce trade ward between the US and China for over a decade and this intensified after the Trump administration issued heavy sanctions and bans against Huawei, one of the largest telecommunication’s companies in China and the world. Thus, the questions of whether the arrest of Meng was politically motivated and was more about sanctions and not fraud rears its head.
It is argued that Meng’s case is significant not just on its own merits but also because of the precedent it may set for similar cases in the future. Each of the arguments in Meng’s defense has been thoroughly researched and vetted by teams of top-tier attorneys and academic experts alongside independent authorities like economists and legal luminaries and all parties agree that the United States has acted illegally in bringing this case. Having access to such legal resources is unusual for any party in most extradition proceedings, let alone a defendant, however, this is a step in the right direction towards correcting the anomalies and irregularities that plague extradition hearings.
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