Should David Lametti waive extradition of Huawei executive Meng Wanzhou in light of airport video?

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      (Warning: this is a longer article than what people ordinarily see on media websites.)

      Newly released video has offered more details into the arrest of a senior Huawei executive at Vancouver International Airport last December.

      The legal team for Meng Wanzhou has used the term "covert criminal investigation" to describe what happened.

      That's because Meng appeared to be subjected to questioning by Canada Border Services Agency over a four-hour period in a detention area before she was informed that she was going to be arrested by the RCMP.

      She was also allegedly forced to turn over electronic devices and her luggage before being given an opportunity to speak to a lawyer.

      According to the legal team, this violated her constitutional rights.

      One day earlier, RCMP Const. Winston Yep swore an affidavit in B.C. Supreme Court, persuading a judge to issue a provisional arrest warrant. This was the justification for the arrest of Meng pursuant to section 12 of the Extradition Act.

      This came in response to a request from the United States, which had learned that Meng would be travelling through Vancouver on December 1 on a Cathay Pacific flight on her way to Mexico.

      According to Yep's affidavit, Meng faced "serious charges of fraud involving millions of dollars" in the United States.

      Video: Watch this CBC News report about the detention of Meng Wanzhou at the Vancouver airport.

      New minister oversees file in 2019

      The affidavit revealed that the minister of justice—then Jody Wilson-Raybould (through one of her officials)—authorized the attorney general of Canada, also then Jody Wilson-Raybould, to apply for the provisional-arrest warrant for Meng.

      Her father, Huawei founder Ren Zhengfei, told the Globe and Mail in June that other countries had rejected the request to extradite Meng despite having extradition treaties with the United States.

      "Based on judicial investigations, there has been proof that Canadian law enforcement authorities have violated the law while they detained Meng Wanzhou at the airport," Ren told the newspaper. "I think it would be proactive, wise, and legitimate move if the Minister called off the extradition proceedings. We don't want Meng Wanzhou's case to affect the relations between our two countries, the relations between our two peoples, or any future opportunities for development."

      He also maintained that his daughter never committed any crime in Canada. And therefore, "the case does not satisfy the double criminality principle of Canada's Extradition Act", according to Ren.

      China's foreign affairs ministry spokespeople repeatedly claim that Canadian politicians have the power to free Meng and let her go home. That's been denied by Trudeau, who insists that Canada is following the rule of law.

      Just over a month after Meng was arrested, Wilson-Raybould was replaced as justice minister and attorney general by David Lametti, a Montreal-area MP.

      There's no evidence that the Meng extradition case played any role in Prime Minister Justin Trudeau transferring Wilson-Raybould to another cabinet post, from which she resigned a short time later.

      But two things were clear to the prime minister by that point:

      1. Wilson-Raybould was a stickler for following proper procedure and she wasn't going to bend easily to the will of the prime minister's office. That was demonstrated in her refusal to reconsider a decision to grant a deferred prosecution agreement to SNC-Lavalin.

      2. The government of China was seriously ticked off over the arrest of Meng and had already kidnapped two Canadians—Michael Kovrig and Michael Spavor—in retaliation.

      By early January, Trudeau must have realized that China was certain to ramp up pressure on Canada. Since then, billions of dollars of trade between Canada and China has been put on ice, threatening the Liberal government's hold on power in the upcoming election.

      And more economic punishment could be inflicted if China stops students and tourists from coming to Canada,

      Trudeau also feels pressure to keep the Trump administration happy. Its FBI director, Christopher Wray, is the most hawkish senior law-enforcement officer in recent history when it comes to responding to Chinese espionage.

      The U.S. government still hasn't ratified the USMCA trade deal with Canada and Mexico. That's a top Trudeau priority.

      Jody Wilson-Raybould (left) was replaced by David Lametti (second from right) just over a month after Meng Wanzhou was arrested at Vancouver's airport.

      Dual role is significant in extradition cases

      Enter Lametti, a genial, multilingual former law professor with degrees from the Yale Law School and Oxford University.

      Under Canada's Extradition Act, Lametti has tremendous authority in his dual capacities as attorney general and justice minister.

      A recent review of the roles of the attorney general and justice minister—written by former deputy prime minister Anne McLellan—did not recommend splitting them up.

      McLellan's review only mentioned "extradition" once.

      This was the case even though the potential surrender of Meng to the U.S. government is riddled with risk for the Canadian economy and Trudeau's political future. 

      This leaves Lametti in charge of the Meng extradition as he continues wearing the hats of justice minister and attorney general.

      Under section 7 of the Extradition Act, Lametti is responsible as the justice minister for the implementation of extradition agreements, the administration of the act, and dealing with requests for extradition.

      Under section 13, a judge can issue a warrant for the provisional arrest of a person on an ex parte application by the attorney general.

      Wilson-Raybould was ultimately responsible for that when Meng was nabbed at the Vancouver airport.

      A person arrested must be discharged if the justice minister notifies the court that "an authority to proceed" will not be issued. Wilson-Raybould did not do that.

      A judge holds an extradition hearing only after receiving an "authority to proceed" from the attorney general.

      Under section 32(2), evidence gathered in Canada "must satisfy the rules of evidence under Canadian law in order to be admitted".

      In his role as justice minister, Lametti can order that the person being sought by another country is surrendered to the extradition partner.

      Under the law, Lametti also has broad latitude to impose conditions in connection with the extradition.

      He can issue an order the person not be prosecuted in the other country or that a sentence not be imposed or enforced on that person.

      Under section 44(1) of the Extradition Act, Lametti can refuse to make a surrender order if he's satisfied that it "would be unjust or oppressive having regard to all the relevant circumstances".

      Presumably, this is the section that Meng's father was referring to when he claimed that Canadian authorities broke the law when she was detained at the airport. And that's why the Huawei founder believes that the extradition can be called off.

      In June, Huawei founder Ren Zhengfei told the Globe and Mail that Canada should halt its extradition proceeding against his daughter.

      Lametti has other options

      In addition, Lametti can refuse to surrender a person if the request is made for the purpose of prosecuting a 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".

      China has claimed that Meng's arrest is intended to harm Huawei, a Chinese company, and advantage U.S. telecommunications companies. Does this mean that U.S. authorities want to prosecute her because of her nationality? 

      The Americans will deny this, but that's certainly an issue for China.

      Under sections 46 and 47 of the Extradition Act, there are grounds for a justice minister to refuse to issue a surrender order, none of which may apply to Meng's case.

      The act includes avenues of appeal for someone who is ordered to be turned over to another country.

      In addition to being able to apply for refugee status, a person who's ordered to be surrendered can seek a judicial review of the justice minister's order.

      This takes place in the court of appeal where the committal of the person was ordered.

      For Meng, that would be the B.C. Court of Appeal.

      Her case could easily drag on for years, long after Donald Trump ceases to be president and possibly after Wray is replaced as the FBI director.

      That's not to say that a Democratic Party president or a new FBI director wouldn't still want to see Meng extradited to the United States.

      But a Democrat in the White House may not be as mercurial and unpredictable as Trump should Lametti give Meng a free pass to return to China.

      While Meng Wanzhou is out on bail and her lawyers argue that her constitutional rights were violated, Michael Kovrig and Michael Spavor remain in a Chinese jail, denied the type of due process that Canadians sometimes take for granted.

      What is in Canada's national interest?

      So Canada might be playing a waiting game, pending the outcome of the 2020 U.S. presidential election or to see if Trump reaches a comprehensive trade agreement with China.

      It's in Canada's interest to get the two Michaels released from Chinese prisons.

      It's in Canada's interest to be able to export meat and canola to China.

      Everyone in Canada who's paying attention knows that China is a ruthless authoritarian regime, based on its behaviour in response to the arrest of Meng.

      This heartless conduct is also on display in China's mass detentions of Uyghurs in Xinjiang and in its appalling treatment of Nobel Peace Prize winner and democracy advocate Liu Xiobao, who died in 2017. For these acts, a case can be made for kicking China out of the World Trade Organization.

      At the same time, there's something smelly about the arrest of Meng at the Vancouver airport.

      Why wasn't she simply taken off the plane and straight into RCMP custody, where she would be given the right to contact a lawyer?

      Is Lametti, through his representatives in B.C. Supreme Court, going to try to argue that this was okay? That this is the norm for anyone suspected of committing a crime?

      Or will he revoke the extradition request under section 44(1) of the Extradition Act on the basis that it "would be unjust or oppressive having regard to all the relevant circumstances"?

      Meng's lawyers appear to have given Lametti enough ammunition to go this route.

      But do Lametti or Trudeau have the stomach to face the wrath of Trump if the extradition process is cancelled?