02/11/2019 12:19 EST | Updated 02/11/2019 12:31 EST

Huawei's Meng Wanzhou Could Have A Strong Case Against Extradition

Ambassador John McCallum was mostly right when he suggested the Chinese CFO might have an out.

Huawei chief financial officer Meng Wanzhou was arrested in Vancouver on Dec. 1, 2018, pursuant to a provisional arrest warrant that was issued under the "Extradition Act." The United States has now made a formal request for Wanzhou's extradition.

On Jan. 22, 2019, John McCallum, Canada's ambassador to China, told a gathering of Chinese-language journalists in Toronto that he thought Meng Wanzhou had a strong case to fight extradition to the United States. He also raised several arguments that he thought would support her case.

Bloomberg via Getty Images
Meng Wanzhou, chief financial officer of Huawei Technologies Co., leaves her home while out on bail in Vancouver, on Jan. 10, 2019.

During his meeting with Chinese-language journalists, Mr. McCallum specifically referred to the following arguments:

  • Political involvement by the White House in connection with the extradition request;
  • The extraterritorial aspect to her case; and
  • That Canada has not signed onto the same Iran sanctions that Huawei is accused of violating.

After making the above comments, John McCallum was forced to resign on Jan. 25, 2019. There is no doubt that his comments were politically controversial, but were they legally accurate?

Political involvement by the White House

U.S. President Donald Trump has publicly stated that he would be willing to "intervene" in Meng Wanzhou's criminal matter if it would help him establish a new trade deal with China. If the criminal allegations made by the United States are in fact politically motivated (i.e., they are being used as a bargaining chip in its trade dispute with China), Meng Wanzhou could actually fight extradition on this basis (during the extradition hearing and when the Minister of Justice is considering whether to issue a Surrender Order).

The extraterritorial aspect

This apparently refers to the fact that the alleged conduct, upon which the extradition request is based, appears to have occurred outside of U.S. territory. The alleged bank fraud involved multinational financial institutions, and the Iran-related transactions involved a Hong Kong-based corporation (Skycom). The only potential link to the United States was the fact that Skycom had to repatriate income from Iran through U.S. dollar clearing transactions, which typically pass through the United States.

Canada's former ambassador to China John McCallum might have committed an unforgivable diplomatic gaffe when he sized up the case against Meng Wanzhou, but that doesn't mean his assessment was wrong.

Section 5 of the Act makes clear that extradition may occur even if the conduct upon which the request is based occurred outside of the foreign country's territory. It is also irrelevant whether Canada could exercise jurisdiction in the same circumstances.

So claims that the United States is attempting to apply its laws to conduct that occurred outside of its own territory will not prevent the extradition process from going forward. However, as confirmed by Section 47 of the Act, the Minister of Justice may refuse to issue a Surrender Order if she is satisfied that none of the conduct, upon which the extradition request is based, occurred in the territory over which the United States has jurisdiction.

In other words, the extraterritorial application of U.S. laws could be used to support the Minister of Justice's decision to not issue a surrender order, once the extradition process reaches the final stage.

Canada has not signed onto the same Iran sanctions

John McCallum suggested that Canada and the United States do not impose the same economic sanctions against Iran. Although this may be true at the present time, the RCMP affidavit filed in support of Meng Wanzhou's provisional arrest warrant claims that the alleged bank fraud occurred between 2009 and 2014. So John McCallum's statements on this point appear to be inaccurate, at least in relation to the period in question.

The Global Affairs Canada website provides a helpful summary of Canada's history of economic sanctions against Iran. According to the website, Canada's economic sanctions against Iran closely tracked those imposed by the United States until 2018. This recent divergence was the result of the United States' withdrawal from the "Joint Comprehensive Plan of Action" (JCPOA)

Bloomberg via Getty Images
People hold signs in support of Meng Wanzhou outside of a bail hearing at the Supreme Court in Vancouver on Dec. 11, 2018.

On May 8, 2018, President Trump announced that the United States would withdraw from the JCPOA. On the same day, the Government of Canada reaffirmed its continued support for the JCPOA. On Nov. 5, 2018, the United States fully restored the tougher economic sanctions that had been lifted as a result of the JCPOA.

In summary, Canada's economic sanctions against Iran only began to diverge from those of the United States on Nov. 5, 2018. During the period when the alleged bank fraud is alleged to have occurred (2009 to 2014), both Canada and the United States imposed the same economic sanctions against Iran.

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It would appear that at least two out of the three arguments that John McCallum raised could theoretically be argued in support of Meng Wanzhou's release, either during her extradition hearing or in submissions to the Minister of Justice. Nevertheless, he should never have commented on whether those arguments would ultimately be successful. In doing so, he created the perception that the extradition process could be affected by political influence.

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