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What are the implications of Huawei's CFO's arrest by Canada on behalf of US?|
Gregory J. Reid, former Professor at Université de Sherbrooke (1994-2013)
[ref: https://www.quora.com/What-are-t ... ada-on-behalf-of-US]
A Dozen Reasons Why the Canadian Minister of Justice, Jody Wilson-Raybold, Should Release the Huawei CFO, Sabrina Meng Wanzhou
The "Canadian Extradition Act" Gives the Minister of Justice the Right and Obligation to Release Meng
It's becoming more and more obvious in the media (social, anti-social and other) that the request for Sabrina Meng Wanzhou's extradition is bogus. Contrary to what you may have read or heard from Canadian politicians about extradition proceedings being out of the hands of the political leadership, the Canadian Extradition Act clearly states that : "The Minister [of Justice] is responsible for the implementation of extradition agreements, the administration of this Act and dealing with requests for extradition made under them." (For more see Was Freeland Lying? and How Canada Arrested a Chinese Exec.)
According to The Act, the Canadian Minister of Justice, Jody Wilson-Raybold, can and should intervene in an extradition if she considers it "unjust" after reviewing "all the relevant circumstances." She can "at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person." The "circumstances" provide ample reasons and The Act provides specific injunctions requiring the Minister to intervene in the case of Sabrina Meng Wanzhou; including: the "political" nature of the extradition request, that the request is based on Meng's "nationality and ethnicity," that her alleged crimes would not be prosecuted in Canada, that her alleged white-collar crimes would not warrant two years of imprisonment as required by The Act, that the character and legitimacy of the warrant for Meng's arrest, detention and extradition are highly questionable, and that while the legitimacy of Meng's detention and the extradition proceedings are in serious doubt, they pose a threat to public safety and are counter to Canadian interests.
1. The charges against Meng are not substantive enough to warrant extradition.
Various media outlets have repeated the claim that each of the charges against Meng is punishable by 30 years of imprisonment. Stop and consider: why are we being fed this piece of information? The exact details of her alleged crimes have remained sketchy, so why has this precise detail of 30 years of imprisonment been so widely and precisely promulgated? Who is spreading this claim? For what purpose? More to the point, even based on the most exaggerated rumours of the seriousness of Meng's alleged crimes, does anybody really believe that an American court is going to throw her in jail for the next 30 or 60 or 90 or 120 years? So why this emphasis on the maximum sentence? Because, according to the Extradition Act, in order for the extradition process to proceed, it must be clear that Meng's crimes would be punishable by at least two years of imprisonment. We don't extradite people for minor crimes; we don't extradite people to pay fines, or be put on probation or be imprisoned for less than two years. In the aftermath of the financial collapse of 2008 and extensive evidence of wrongdoing, no American was convicted of a crime, but the punishment for white-collar crime in the USA has become a much debated topic. Based on the information leaked to the public so far, Meng's alleged white-collar crimes fall well below the two-years-of-imprisonment threshold required for extradition.
2. The accusations against Meng would not constitute a criminal offence in Canada.
According to media reports, Meng is accused of contravening trade sanctions against Iran; Huawei, of which she is CFO, is accused of selling technology in Iran which contained US components and/or patents, and Meng is accused of bank fraud. Of these three accusations only "bank fraud" would be a criminal offence in Canada. To keep it simple, "bank fraud" is stealing money from a bank--but without pointing a gun at anyone. (You might want to have a look at Should Bank Robbery Be Deregulated?) However, the "bank fraud" in this case is related to sanctions against Iran in that she is accused of failing to inform or hiding from bankers that Huawei owned a shell company which owned a company called Skycom which was doing business with Iran. (For more detail see: The Chaos Theory of International Trade.) How much money did she steal? There is no hint of an answer to this question in the media. I suspect the answer will be zero. How much the banks lost determines how long the prison sentence could possibly be. The claims of a 30-year prison sentence imply that the banks (or a bank) lost billions. I have seen no claims concerning the amounts that the banks lost despite the repeated claims of multiple 30-year prison sentences. As reporters for the New York Times point out: HSBC (the bank Meng is accused of defrauding) has repeatedly been convicted of money laundering. In order to avoid another conviction in the USA for moving money in Iran, they threw Huawei CFO Meng under the bus, claiming that she tricked them into doing it.
Patent Infringement would be a civil and not a criminal case, therefore not grounds for extradition. Moreover, patent infringement is such a common occurrence in large American companies that the practice has spawned a new expression: infringement efficiency, which means, in short, that stealing patents is good business as long as the amount of money you end up paying if you are found guilty in court is less than the profit made from the stolen patents.
3. Contravening trade sanctions against Iran is not a crime in Canada.
(See the Canadian Government's Guide for Doing Business in Iran.) In order to continue to push for extradition, the US Attorney will have to keep pushing the idea of "bank fraud," despite the shadowy, sketchy chain of events which will need to be proven. The necessary sequence of accusations depends on trade sanctions against Iran. Canada does restrict trade with Iran, but those restrictions only apply to materials for the construction of nuclear weapons and ballistic missiles. The accusations against Meng refer to statements she made (or failed to make) in 2013 or 2014 (depending on which news report you believe). The year or years are crucial because in 2016 the Obama administration negotiated an anti-nuclear deal with Iran and trade sanctions were lifted. In 2018 the Trump administration reneged on and cancelled that agreement and unilaterally imposed new sanctions. Here's a legal question: Would we prosecute someone for committing a crime which is no longer a crime in Canada? Need some context? We just legalized possession of marijuana. Will we prosecute people if we find proof that they possessed pot before it was legalized? Still not convinced? In 1968, homosexuality and various forms of recreational sex were legalized in Canada. Do you imagine that we might have continued to convict people for acts of homosexuality and oral sex in the 1970s? We would not prosecute Meng in Canada because the underlying basis of her alleged crimes is currently not criminal in Canada.
4. There is an underlying conflict of interest in the request for Meng's extradition.
As I outlined in an earlier post (The Chaos Theory of International Trade), Richard Donoghue is the US Attorney for the Eastern District of New York. In a matter of months, Donoghue went from being an employee of CA Technologies (their Chief Litigator, in fact) to spearheading the request for Meng's arrest, detention and extradition. The mere fact that he was so recently employed by a Huawei competitor strongly suggests that he might still be acting as an agent for the benefit of CA Technologies, which puts him in an apparent, if not actual, conflict of interest.
5. The extradition request is based on Meng's nationality and ethnicity.
The Canadian Extradition Act explicitly instructs that the Minister of Justice "shall refuse to make a surrender order if the Minister is satisfied that . . . . the request for extradition is made for the purpose of prosecuting or punishing the 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. German banks continue to do business in Iran. The USA has an extradition treaty with Germany, but there have been no reported moves to extradite executives of German banks. Skycom, the German company at the centre of the accusations against Meng, continues to operate, and there have been no moves to extradite German executives. When the Standard Chartered Bank of Britain was convicted, in 2012, of doing hundreds of billions of dollars of business with Iran through its New York office, they were required to pay a fine. No criminal charges have been laid. Banks found to be in noncompliance and fined with operations in the United States include Barclays, ING, Credit Suisse, Lloyds, and ABN Amro. No bank executive has faced criminal charges for doing business in Iran. There is little doubt that the only reason Meng is being singled out for criminal prosecution is because she is Chinese and her company is Chinese.