In Canada, the decision about whether or not to extradite someone to another country to face criminal charges has both a legal and political aspect.
The courts decide if the legal requirements for extradition have been met. If they have, it is then up to the Minister of Justice to determine if the person should actually be extradited.
The recent decision concerning Wanzhou Meng of Huawei dealt with one of the legal requirements: the offence the person is charged with, in the other country, must also be an offence in Canada. This is referred to as double criminality.
Ms. Meng is charged with fraud in the United States on the basis that she is alleged to have lied about Huawei’s control of an Iranian company in order to secure a loan of $1.5 billion that would otherwise have been in violation of United States sanctions against Iran.
Ms. Meng’s lawyers argued that, because Canada didn’t have similar sanctions in place at the time she is alleged to have lied to obtain the loan, the requirement for double criminality hadn’t been met.
The judge disagreed with this argument and concluded instead that it was the “essence of the offence” that must exist in both countries. She reasoned that fraud can be committed in both the United States and Canada if you lie in order to obtain a loan.
Interestingly, fraud of this kind can occur even where the loan is repaid as promised. The theory of this is that the other party was put at risk: in this case, the banks were put at risk of being charged with violating the United States sanctions against Iran.
The way the Canadian justice system has dealt with Ms. Meng is in sharp contrast to how the two Canadians have been dealt with by China.
Ms. Meng is free on bail, living in a mansion in Vancouver, and is availing herself of the Canadian justice system that affords transparent hearings, with an independent judge, legal counsel and all of the other elements of a system premised on the rule of law.
In contrast, the Chinese government arrested two Canadian men days after Ms. Meng was arrested, in retaliation. The men have spent more than 530 days in jail, without bail and without a trial. Their names of the men are Michael Spavor and Michael Kovrig.
This conduct, by the Chinese government, will have no impact on the judicial process. It may, however, inform the Minister’s decision concerning extradition. Refusing extradition, in this context, would encourage future retaliatory arrests by China or other authoritarian regimes.
Also discussed on the show is a case involving a law firm that is suing Google, and an unknown person, for a review left on Google Maps. The law firm is in the process of obtaining a “Norwich order” to require Google to turn over IP, and other information, to reveal the identity of the person who left the review so that they can be named in the civil action.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
Legally Speaking May 28, 2020
Adam Stirling [00:00:00] It is time for Legally Speaking, where we benefit from the knowledge and insight of Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Michael, a pleasure as always. Good morning.
Michael T. Mulligan [00:00:08] Good morning. Great to be here.
Adam Stirling [00:00:10] I would suspect that much of the world was watching the case involving Wanzhou Meng yesterday, a decision being released by a court here in the Province of British Columbia. And as you have helpfully described, the Minister of Justice not off the hook. How does this all fit together?
Michael T. Mulligan [00:00:26] Indeed. So, there were a number of things which I think were important about the decision yesterday. But I think the first thing to appreciate is that in Canada, the decision about whether you’re going to extradite somebody to another country to face trial there, is not a decision which is made solely by a court. And Chief Associate Chief Justice Holmes made that clear. She’s an experienced person dealing with criminal matters, and her decision is entitled Ruling on Double Criminality and that’s what that is. The, in Canada, the decision about whether to extradite somebody has some elements of the decision that are made by a court, for example, this double criminality decision, which we’ll get into in a moment, and then another assessment as to whether a person could be convicted on the evidence presented by the requesting state. But ultimately, there is a political decision to be made because the Minister of Justice needs to decide, are you going to actually extradite the person? And so that’s why the Minister of Justice, Mr. Lametti, not off the hook. I’m sure from his perspective, watching this head, the judge decided that the charge for which the United States was seeking Ms. Meng’s extradition didn’t meet that threshold. Well, that would have been the end of the matter and off she would have gone. So, the decision yesterday doesn’t mean that she goes back automatically. It simply means that this part of the test for extradition has been met. Now, the other thing which was interesting about the decision that came out yesterday is that it gave us some more insight into what exactly is she alleged to have done. You know, why is the United States asking that she be extradited there to face trial? And that was, has been, to this point, a little bit obscure. And we’ve got some additional details about that in the decision. Now, the underlying allegation is that Ms. Meng, on behalf of Huawei, the large Chinese telecommunications company arranged for a very large loan from a consortium of international banks to the tune of one and a half billion dollars between about 2013 and 2015.
Adam Stirling [00:02:56] Mmhmm.
Michael T. Mulligan [00:02:56] And at that time and still, the United States has a host of restrictions on business being done with Iran. Canada has had restrictions, they varied over time. We still have some, but they’re not as extensive as the ones that are in place in the United States. Huawei established a subsidiary in Iran called Skycom, which originally, they owned all of it and Ms. Meng was on the board of directors. Because of the sanctions the U.S. had in place, Huawei professed allegedly to no longer have control over that subsidiary. So as to allow business to be done through this, quote, independent local subsidiary”. And Ms. Meng is alleged to have done things, including make representations at a backroom of a restaurant in Hong Kong in 2013 to HSBC and this consortium of banks claiming that they are no longer controlling this Skycom company in Iran. And those representations were made in order to arrange for that large loan that I mentioned. And so, the issue for the judge was whether the allegation of fraud, which is what she’s being charged with, would also have met the test of fraud in Canada. And the argument her lawyers made…. was essentially, look, Canada didn’t have the same prohibitions on dealing with Iran in place at the time. Therefore, this wouldn’t have amounted to an offense in Canada. So that was their argument.
Adam Stirling [00:04:41] Mhmm.
Michael T. Mulligan [00:04:41] Good argument. But the judge concluded that wasn’t sufficient to establish the dual criminality didn’t apply. And the judge carefully analyzed here, what are the elements of fraud? And concluded that really, it’s the essence of the offense that’s important. And the judge made this point. So, I think a good one for people to be aware of generally.
Adam Stirling [00:05:06] Yes,
Michael T. Mulligan [00:05:06] That fraud can include making false representations to somebody, even if the person you’re making it to doesn’t, in fact, lose something. And so, here’s the, here would be an example of that in Day-To-Day life. Let’s say somebody was a professional gambler. Right.
Adam Stirling [00:05:24] Yes.
Michael T. Mulligan [00:05:25] He wanted to get a mortgage to buy a home. If you told your bank I’m a gambler, that’s how I plan to pay my mortgage back. The bank might well say, oh, I just don’t think we can lend you the money, what if you have a bad run of luck at poker and you know we don’t get repaid,.
Adam Stirling [00:05:40] Indeed
Michael T. Mulligan [00:05:41] So if the fictitious gambler were to say no, no, I in fact work for the government. And here are a bunch of paystubs which they doctored up on their computer or something. Right.
Adam Stirling [00:05:51] Yes.
Michael T. Mulligan [00:05:52] Even if the gambler pays the mortgage back as promised, they have still engaged in fraud because the lender was, in fact put at risk even if the risk didn’t crystalize.
Adam Stirling [00:06:05] Interesting. So, I guess it’s not sufficient to be lucky. It’s sufficient to simply take that risk.
Michael T. Mulligan [00:06:11] Correct. If you lie to, for example, a lender causing them to take a risk they would not have otherwise taken, they rely upon your lies. You’ve committed fraud even if you repay the money. And so, the argument by the United States, which succeeded on this application was, well, look, the allegation here is that she lied to them about not being in control of this subsidiary, this Skycom company in Iran. And they allege that was a false, that was false, that in fact, Huawei controlled that company, they said, you know, that the people working there apparently had Huawei email addresses, security badges and used Huawei stationary.
Adam Stirling [00:06:54] So that’s, that’s not a very good cover up. But that’s beside the point, I suppose.
Michael T. Mulligan [00:06:59] Probably pretty compelling evidence. But, you know, we’ve not tested yet.
Adam Stirling [00:07:02] All right.
Michael T. Mulligan [00:07:03] And so the theory would be, look what you did by lying to the consortium of banks to get your one and a half billion-dollar loan. Put those banks in jeopardy because they could have been charged with breaching the US restrictions that were in place in terms of dealing with Iran.
Adam Stirling [00:07:21] Interesting.
Michael T. Mulligan [00:07:21] Now, they might not have been, but that would be just like the gambler who lied about working for the government to get the mortgage. That was the argument and that argument carried the day with the judge. And so, the judge concluded that these allegations do meet that test of dual criminality, even though, a Canadian bank, for example, if you went and told a Canadian bank. No, no, I don’t control that subsidiary. You really wouldn’t have been putting them in any jeopardy at all because Canada didn’t have any prohibitions on dealing with Iran.
Adam Stirling [00:07:54] Interesting.
Michael T. Mulligan [00:07:54] And so that’s how the defense tried to analyze that issue of dual criminality. But the judge didn’t accept it here. And so that means the case carries on. It doesn’t mean that she’s immediately sent off to face trial in the United States. She’s got other arguments to make in court. One of the arguments, is an argument she’s making some abuse of process argument. And she’s also going to make an argument about whether the evidence alleged, if accepted, could lead to a conviction. Those are both things that a court will deal with. But even then, it’s over to the Minister of Justice. And the decision for the Minister is, do you want to actually extradite this person? Now, there are a whole bunch of things that might go into that political calculation.
Adam Stirling [00:08:42] mmhmm.
Michael T. Mulligan [00:08:42] The other thing that shouldn’t be forgotten, and it really brings into stark contrast the Canadian and the communist Chinese justice system, is that shortly after there was an arrest on this warrant and this process started. China essentially arrested or abducted, I guess it depends on your perspective, two different Canadians. Both first named Michael, so I got some connection there, Michael Spavor and Michael..
Adam Stirling [00:09:06] Kovrig. Yes.
Michael T. Mulligan [00:09:06] Kovrig. They’ve now spent more than five hundred and thirty-five days in jail. As a result of that, they haven’t received a trial of any kind. They’re sitting in a Chinese prison. Ms. Meng, of course, is out on bail, living in a mansion in Vancouver and is enjoying the, you know, the fair justice system of an independent judiciary, reasoned decisions that we can all read and look at and assess the quality of the evidence and allegations and so forth.
Adam Stirling [00:09:36] Yes.
Michael T. Mulligan [00:09:36] And so it brings into really sharp relief the difference between the Canadian justice system. Right. And what happens to you in China,
Adam Stirling [00:09:47] Yes.
Michael T. Mulligan [00:09:47] Which is nothing like that. There’s no trial occurring there. Nobody can see what on earth is the evidence against these people, if any? It would appear effectively they’ve been just abducted as hostages and kept in jail by the Communist Party in China as retaliation for this arrest. And so that is going to be an interesting thing if you’re the Minister of Justice. How do you respond to that? Are you you say, oh, my goodness, I’m fearful, I don’t want China retaliating in some way. Or maybe you have the opposite reaction when you’re making that decision, because there will be a political decision here to be made. The Minister of Justice, at least at this point, not off the hook. That will have to be decided. And you’re dealing with a regime in China that behaves in that fashion. And so I can tell you, if you were dealing with something other than some state actor, if you had a couple of people taken hostage effectively by some organization, you can expect, you can imagine what that response would be to that.
Adam Stirling [00:10:53] Yeah.
Michael T. Mulligan [00:10:54] So that’s what’s going on. We can now see, you know, what is she alleged to have done? Anyone is free to read the judgment and assess how the judge came to her decision. But on the other hand, you read a completely opaque process whereby the Chinese government has just taken two Canadians and put them in prison, hoping to leverage something under the Government of Canada. So, people have to think carefully about how do you want to respond to that and how do you want to be dealing with a country that behaves in that fashion? That appears to be pretty outrageous conduct.
Adam Stirling [00:11:28] Yes.
Michael T. Mulligan [00:11:29] And we need to of course, there may be economic and other considerations, but that at its core is how China behaves. And so that is pretty unsatisfactory conduct. And perhaps we ought to have considerations when dealing with the Communist Party of China that go beyond, you know, how much pork can we fell to them if they’re going to behave in that fashion?
Adam Stirling [00:11:57] My pronunciation might be off here because I learned this phrase from a book. But it’s Fiat Justitia Ruat Caelum. Let it be done justice, though the heavens fall. I should hope that that applies in this case.
Michael T. Mulligan [00:12:07] Yes. I have no doubt that the Associate Chief Justice Holmes is doing her duty. You can read her reasons, it’s transparent, clear. Right. Somebody might have a different view of it. Maybe there’ll be an appeal. Who knows? But her decision is a reasoned and transparent one. We can all look at it. We can see it. We can assess it, critique it. That’s what we have in Canada as opposed to China. Now, as I said, though, this process is not simply legal. Ultimately, I mean, one of the arguments made was, well, look, what if there is some completely, you know, odious law in another country, for example, sort of one of the arguments made was, well, what if the alleged fraud had to do with, let’s say, a person being kept as a slave in another country? Right.
Adam Stirling [00:12:53] Interesting.
Michael T. Mulligan [00:12:53] Would you really just say, well, that’s fine. You know, we’re going to extradite the person there. And the judge made the point that, well, look, the decision for the Minister, the end of the day includes an assessment as to whether it would be unjust or oppressive, having regard to all of the relevant circumstances to extradite the person to the other country. And so not all of this is a decision the court has to make. And she is very clear about that. Right. Some of those judgment calls about values and so on are judgment calls for the Minister to make. Not the court to make. The court will make determinations about things like does this amount to double criminality. Right. Could there be a conviction on the evidence that’s presented? Those are legitimate legal questions. The court will answer them. But those big policy questions like what do you want to do here, Minister? Should take quite properly into account other things. Right.
Adam Stirling [00:13:52] Yes.
Michael T. Mulligan [00:13:52] You can provide, for example, a Donald Trump shooting his mouth off about this case saying, oh, maybe I could intervene and that would help in some trade negotiation. So perhaps if you’re the Minister of Justice, that’s something you take into account, even though it might not have a legal effect in the sort of realm of what the court decides. You could have a Minister of Justice say, well, look, you know, I think this might be being done for some improper purpose or I don’t like the justice system being used as a bargaining chip in some way. I’m not extraditing the person. Thanks so much. And that’s quite properly a decision for the Minister of Justice. They’ve got much broader discretion. The court is charged with making these legal determinations and those policy decisions are political.
Adam Stirling [00:14:40] Yes.
Michael T. Mulligan [00:14:40] And that’s broadly how the justice system works in all sorts of things. Right.
Adam Stirling [00:14:43] Yeah
Michael T. Mulligan [00:14:44] Parliament to decide what’s going to be the law and what the penalties will, you know, range of penalties will be the sort of thing. And the court is going to within constitutional restraints, you know, interpret that, and apply it. And so here the court makes clear that, you know, they’re not in charge of those decisions, that will be a decision for the Minister. And so, you know, you could see, so far, Canada has been able to say, well, look, this is before the courts were allowing the court to deal with that. This is not a political matter. And that’s true. But if all the legal tests are met, it then becomes a political matter.
Adam Stirling [00:15:22] Hmmm
Michael T. Mulligan [00:15:22] And we’ll need to take into account, the Minister will need to take into account. What about that Donald Trump character?
Adam Stirling [00:15:27] Yes.
Michael T. Mulligan [00:15:27] What about the people that China’s holding in prison for hundreds of days without trial?
Adam Stirling [00:15:31] Yes.
Michael T. Mulligan [00:15:32] What are you doing here? And so, you know, it may well be that the you know, I’m sure the ministers have been paying careful attention to the next couple of arguments in court to see whether he gets let off the hook. But so far, no such luck for him.
Adam Stirling [00:15:47] It is probably beneficial at this point to reflect on the reality that we are caught in a fight between the world’s two superpowers at the moment if we can still use that term. And while it’s all well and good to say, let justice be done, though the heavens fall. If the heavens ever actually did fall and destroy the justice system itself. It seems that the result would be less satisfactory because there would be no justice system and ergo no justice. It’s a paradox.
Michael T. Mulligan [00:16:10] Well, I mean, the justice system is going to do its job.
Adam Stirling [00:16:13] Yeah.
Michael T. Mulligan [00:16:13] Chief Justice, Associate Chief Justice Holmes is going to give you a legal decision. One the other day. Now, if it’s appealed, the Court of Appeal will produce a legal decision. Those decisions about things like, you know, what about the impact on trade? What do you want to do with the relationship with the US and all those things? Those aren’t really decisions for the court. That’s not an appropriate kind of decisions for a court to make. Courts are going to make rational legal decisions with reasons. Those kind of decisions like what do you want to do to placate the tweeting president or what do you want to do to placate the, you know, Communist Party in China so as to be able to sell the more farm produce or let the hostages out of jail? Right. Those are political decisions, not decisions for Associate Chief Justice Holmes.
Adam Stirling [00:16:59] Yes.
Michael T. Mulligan [00:17:00] She happily doesn’t have to make the call about, you know, how do we weigh up the political relationship with the Communist Party versus the, you know, political realities with Donald Trump. That’s something for the Minister of Justice, not the court. And that’s why this decision ultimately is not for the court. It decides the legal issues, political issue. Good luck Ministry of Justice.
Adam Stirling [00:17:25] Indeed, the Minister shall need. Michael, thank you for helping us understand these complicated matters. A little late for our first break. So, we’ll take that now. We’ll return in just a moment as Legally Speaking, continues on CFAX 1070.
Adam Stirling [00:17:34] We are on the air here at CFAX 1070 with a Legally Speaking Michael Mulligan with Mulligan Defence Lawyers. Michael, I feel I must apologize I neglected to take our first break on time. We have three and a half minutes left in today’s segment and more material than we could satisfactorily cover (laughter) in that time. What would you like to cover?
Michael T. Mulligan [00:17:49] I think I can probably sum up the case involving Google in that time.
Adam Stirling [00:17:53] All right.
Michael T. Mulligan [00:17:54] An interesting one. So, this is the case where there is a law firm that got apparently a bad review left on Google Maps. And the law firm, interestingly, has decided to sue both Google and the unknown, John or Jane Doe, who allegedly left this review. You know, it’s sort of all they have is the account name. And so, there is an application brought to require Google to identify the person who left the bad review on Google Maps. And there is, in fact, a legal process to compel that to happen. And the type of order, I think is a great name, it’s called a Norwich order, which would be an order compelling one person is being sued to turn over information about who the other unknown person is that you’re trying to sue. And there’s a whole test for it. Things like, do you have a legitimate claim? Is this person, is the other defendant, the only practical source of information? And then ultimately a few other things and then is it in the interest of justice to do that? And here, subject to a couple of sort of technical things about ensuring that Google was given proper notice for the application and so on. The judge appears to be persuaded that that sort of an order should be made. So, I thought it was an interesting case also in the context of the fact that sometimes people think that they’ve got some form of anonymity when they’re doing things online. Who’s going to know? But this case shows that if somebody is determined enough, it’s possible to get court orders to determine things like, you know, what was the IP address and log in information, an identity, an email address and so on of the person who did something online. So, I thought an interesting test, a great name for an order and Norwich order. And the broad takeaway for people should be. If you’re leaving things online that might be libelous or improper in some way, the veil of anonymity that you might feel could well wind up getting taken away if somebody is bound and determined to get the required order to reveal who’s done something. So, watch out if you’re leaving things online that may be libelous, you might be subject to a Norwich order and have your identity revealed.
Adam Stirling [00:20:26] Now, I note here that one of the conditions that must be met, the plaintiff must establish that disclosure will facilitate rectification of the wrong. You and I have discussed defamation actions in the past, defamation being a strict liability tort while damages are presumed, they are not presumed to be substantial. And one dollar may be the rectification. Would that factor into this at all, would there be sort of an assessment done in advance?
Michael T. Mulligan [00:20:47] No, that wouldn’t factor in. the test for whether you get one of these orders wouldn’t be an assessment as to how much money the clean might be worth. You do have to meet a number of criteria, right? You’ve got to be a legitimate claim, this is the only reasonable source of the information, the interests of justice served are in favour of granting it. But ultimately, the amount of money you might get wouldn’t be a factor in terms whether you get the order that you’re maybe a factor in terms of whether you want to bother pursuing the claim. But here it would appear that the law firm in question is bound and determined to track down who the unknown person to use the name Shannon Miller might be. And it would appear they’re well on their way to compelling Google to turn over the information necessary to advance their claim.
Adam Stirling [00:21:36] There we are, one of the many stories we’ll watch. Michael Mulligan, Thank you, as always, for your knowledge and insight. We appreciate it. We’ll talk to you soon.
Michael T. Mulligan [00:21:41] Always a pleasure. Thank you very much for having me.
Adam Stirling [00:21:43] Take care. Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, Legally Speaking.
Automatically Transcribed on May 28, 2020 – MULLIGAN DEFENCE LAWYERS