Huawei’s CFO case in Canada has posed a lot of controversy for almost 3 years, given the unusual arrest and the long extradition proceeding reflecting political tension between the United States and China. Telecom Review caught up with Richard Kurland, attorney at law in the provinces of British Columbia and Quebec, Canada, who explained in depth the progress achieved thus far in the case of Huawei’s Meng Wanzhou and shared his insights into the political interference in the case.
Huawei CFO case is unique and never happened in history before. Could you please start with a general idea about the case from your legal position perspective?
Canada and the United States, as well as other countries have agreed to reciprocal enforcement of extradition proceedings. It's not a legally enforceable international obligation, but rather a convention. So that's the genesis. This particular case, however, is highly unusual. The overwhelming majority of extradition cases involving Canada and the United States are typically resolved within a matter of days, if not weeks. People who commit crimes in one country are arrested in the other country and sent back to the first country. So the process is designed to facilitate and expedite the criminal process.
What makes this case special is the geopolitical dynamic involving China, the United States, and Canada, and a complicated context of international relations. So when Ms. Meng took a flight intending to go to Mexico and stopping through Vancouver, somehow, I assume intelligence personnel were aware that the flight was passing through Canada. And so, there was no surprise to see a request from the US that Canada detains Ms. Meng while she was in transit in Vancouver.
Officers and agents testified that they were aware that this case was related to Iranian sanctions. The US have imposed sanctions against Iran US citizens are prohibited from doing certain things with Iran, including banking, but not Canada. As Canada does not have sanctions against Iran, the case morphed and more charges were added onto the extradition case, including fraud.
What is the alleged "fraud" charged by the United States? Based on the new evidence disclosed after June 29 hearing, it is speculated that the US accusation of Meng’s "fraud" was actually a wrong one, which means that this crime is also not established in Canada. Therefore, Canada should terminate extradition. Is this analysis appropriate? How should the public view the new evidence disclosed this time?
The hard part in an extradition matter is you don't have to prove the crime. You don't have to hear evidence of the crime, so you cannot drill down and get to the truth, not in an extradition proceeding. Three key things are required. The first one is a certificate signed by the minister of justice based on what he receives from the requesting state – US here.
Once the certificate is signed, the extradition process unfolds. In that process, the Crown will always say that in the case of an extradition hearing, not all evidence can be tested, unlike a trial. The defense, on the other hand, can do a couple things. They can say that the certificate the minister signed was based on a statement that was manifestly unreliable and so the court can review and declare that the certificate was manifestly unreliable in its contents. I'll give you an example of this that happened in court recently.
The US told Canada that only junior executives of HSBC were aware of the fact that the bank had information connecting Huawei to Skycom and was dealing with Iran which was false. In fact, senior executives had that information. So on a key element of fact that led to the minister deciding to issue the certificate was erroneous. So the next stage, other than an attack on the certificate, is the committal decision where the court decides whether to send Ms. Meng to the United States or not. And that's where these things can be more fully argued.
Moreover, the law in Canada stipulates that at any time, the minister can shut down an extradition case. It's not like any other criminally related court case you're going to see in Canada. Normally there is no possibility of a minister interfering in a criminal matter. It would be highly unusual under extraordinary circumstances that that may happen in law, but not in an extradition.
What is interesting today is that because of the disclosure recently of the Canadian court process that in fact the bank was aware at the senior executive level of the connections between Huawei and Skycom Iran, there is no deceit. They knew. And if they knew where's the fraud? That leaves one item left: the loss.
In fraud, you can have a loss of international reputation. And so the bank and the US are arguing that the HSBC had potentially suffered damage to its international reputation as a banker, by having an Iranian sanction related event, which is legal in Canada, but illegal in the United States, thus it affects the international reputation of the bank. However, this is the same bank that has paid well over a billion dollars in fines recently for fraud, violating bank laws, antiterrorism laws, and anti money laundering laws. So what international reputation?
I looked a little closer at the bank and I found that they were on a deferred prosecution agreement with the United States for having done wrongful things. They were essentially on parole and if they slipped up or got caught one more time, they would lose their ability to conduct bank operations in the United States. In fact, the bank doubled up on its budget for paid lobbyists who were lobbying the department of justice in the United States.
So the foundation is weak. The reason I'm mentioning all of this is that when you look at everything collectively, there is new evidence that was not provided by the US to Canada at the beginning of this case. And I'm not sure Canada would have issued the certificate in the first place had it known that the bank knew of all the Iranian sanctions stuff and of the senior executive level, rather than junior level, as the US told Canada. Based on this new information, politically in Canada, it's completely acceptable to review, reconsider and pull the certificate that started this extradition case.
Public opinion is changing. You had people who said publicly that we cannot shut this extradition case down because we're sending a signal to China that the detention of two Canadian citizens is a legitimate response. But now people are saying, this whole thing was wrong to begin with. We just have to shut it down and the two Canadians will make their way back.
Do you think the new evidence disclosed this time is sufficient to prove the misleading and selective omission of the US ROC documents? If this foundation is overturned, does it mean that Canada should immediately terminate extradition?
In Canada, the period between July into August is called the slow news summer cycle. Typically that's when governments decide to make unpopular things go away. Second, we are in a pre-federal election cycle in Canada, which means that the prime minister's office is very careful and wants to do everything correctly so that people can vote again for the government. Imagine the optics of the prime minister of Canada shaking the hands and greeting two detained Canadians in Vancouver airport on their arrival. So this is an opportunity politically to make hay.
However, whether the court should do this, that's a tougher call because there are more steps to come and more processes that will include additional disclosure and a court has to be cautious. If the court shuts down a process prematurely, before everything is heard, the case may be subject to a legitimate appeal process and no one really wants that. So better for the court to take the time to hear more things. Because this case is so important in media circles, not just in Canada, but globally, every new scrap of information makes the news.
Can you highlight any inaccurate evidence from Canada that the legal side of Ms. Meng has denied?
It was disturbing to hear on the witness stand a very senior Canadian intelligence official informing the court that there was an instruction to the officers to not take notes during all of it. That's contrary to written policy, it's contrary to past practice and I find that to be quite disturbing because they knew full well that this was going to court and that's an intent to not collect evidence that is normally collected and that evidence helps Ms. Meng.
Another thing is the testimony of the Royal Canadian Mounted Police (RCMP), as well as the Canada Border Services Agency (CBSA) agents - the people who physically were in the airport. In this operation, they had senior meetings and all admitted in open court that charter rights were involved. The charter is the supreme law of Canada. You can't get around it. If she were to be arrested, the charter rights would have taken hold immediately on arrest, including the right to counsel and the right to remain silent.
So at the airport, when she got off the plane, the RCMP and CBSA were under a court order to “immediately arrest Ms. Meng” that was ignored. Instead, the testimony revealed that meetings had been held prior to her arrival. Even though the RCMP and the CBSA were there and both have authority to immediately arrest that didn't happen. Instead she was sent to an immigration examination. And what did they want? Testimony revealed they wanted one thing: the passcodes to her cell phones. And as soon as she provided them she was under arrest. It turned out, under oath, the officers admitted the FBI wanted the cell phones and the passcodes.
As a well-known extradition lawyer in Canada and even around the world, to what extent do you think there is political interference in this case? And how will the Biden administration play a role or change this case, in your opinion?
There is gross political interference in this case by the United States. Ms. Meng was nothing less than a pun in trade negotiations between the United States and China.
The vice president of the United States grew up in Montreal so she understands Canada. She understands all of this. As soon as the Biden administration took control of the United States government, things changed immediately. The reason why Canada couldn't do anything earlier is because of president Trump. Canada took a great economic hit in the agricultural sector and other economic sectors because of the decision to detain Ms. Meng. So, Canada paid the price of United States trade negotiations. Now I feel that president Biden is indeed doing his best to fix this.
How do you comment on Canada's judicial governance? Looking at the entire case, do you think there's any abuse of process and from a human rights perspective, do you think the court case of Ms. Meng is testing Canada's commitment to international law and human rights?
Canada has always been at the forefront of human rights as we should be. In this case, fortunately, our judicial system has protected Ms. Meng’s human rights.
What Ms. Meng is doing whether it's intended or not is paving the way for greater respect of human rights, at least in Canadian airports and in charter protection. What she has paid to argue in Canadian court will result hopefully in judicial determinations that will broaden human rights and charter rights for all Canadians and foreigners who are in Canada.
The case has lasted for more than 2 years. What stage is it currently in and where do you see it going?
If there's no termination of the proceedings, in August, this picks up in a serious way. The court will be releasing some decisions that are taken under reserve as it were. When released, if there's a pattern showing that this case may indeed be destined for closure resulting in the freedom of Ms. Meng, why drag it out? I think it's only fair that the politicians in Canada should be assigned the risk and the blame for dragging this out longer than necessary.
Sometimes a politician has to be astute enough and have courage in the truth. It's not changing mind, it's looking at information that was not there before and making the correct decision. And in this one, I'm hoping that Canada will indeed make the correct decision now.