Continued from Newsletter June 2020
Extradition involves the surrender of a person by Canada to a foreign state, called an “extradition partner”:
Extradition may be requested for a Canadian citizen, a landed immigrant, a person ordinarily resident or physically present in Canada, or a person temporarily in Canada while in transit to another country.
Extradition is intended to be non-political so as to insure that a person is not surrendered to a foreign state for political crimes as opposed to serious criminal conduct recognized as such by Canadian law.
Underlying our extradition law is the broad principle of “double criminality”, that is, the principle that Canada should not extradite a person to face punishment in another country for conduct that would not be criminal here in Canada.
Extradition only applies to certain types of criminal conduct. A person may be extradited from Canada to a foreign extradition partner only in respect of “serious criminal offences” which are equivalent to an “indictable offence” under the Criminal Code of Canada. That is, the conduct which was committed in the foreign state must be considered to be a serious crime if it had occurred in Canada.
The alleged crime does not need to have to be named, defined or characterized by the extradition partner in the same manner as it is in Canada. For example the law of an extradition partner may refer to a crime of “grand larceny” or “DUI - driving under the influence”. In Canada we have equivalent offences, namely, “theft of goods with a value over $5,000” and “operation of a motor vehicle while impaired by alcohol or a drug”. A person in Canada who is accused of committing grand larceny in the US could be extradited to the US for trial since the conduct alleged meets the requirement of double criminality.
However if the conduct alleged by the foreign state was distributing gay propaganda [Russia] or engaging in homosexual acts [Kenya], that would not qualify as an extraditable offence in Canada. No crime could have occurred under Canadian law. Thus double criminality is not established. Further the foreign law offends human and constitutional rights protected by the Canadian Charter of Rights and Freedoms. Fundamental human rights protected by the Charter apply to any human being physically present in Canada and do not require Canadian citizenship or permanent residency status.
Justice Holmes has dismissed Meng’s preliminary application on a question of law. This decision does not determine whether or not Meng is extradited. On the question of law posed to the court, Justice Holmes concluded that the double criminality requirement for extradition was capable of being met in Meng’s case. She held that the effects of US sanctions against Iran may properly be considered as part of the background or context against which the conduct alleged is examined by the court in the extradition hearing.
Accordingly the extradition process will continue to a formal extradition hearing. Meng will continue to be detained in Canada on a “house arrest” basis pending the conclusion of that extradition hearing.
In the future extradition hearing the legal test Justice Holmes will consider is: whether evidence admissible pursuant to Canada’s Extradition Act regarding Wanzhou Meng’s alleged conduct would justify Wanzhou Meng’s committal for trial in Canada on the offence of fraud contrary to the Criminal Code of Canada, and therefore justify her extradition to the United States for trial. Justice Holmes does not decide whether or not Meng has committed a crime under US law. That is for the American courts to decide.
The full text of Justice Holmes’ judgement may be found on the the Canadian Legal Information Institute website:
United States v Meng, 2020 BCSC 785 (CanLII), http://canlii.ca/t/j7x3n
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