Breaking down the Huawei Case: A Closer look at Canada’s Extradition Process

By: Sarah Baker

Meng Wanzhou, Chief Financial Officer for Huawei
Photo Credits: Nikkei Asian Review

On December 1st 2018, the Chief Financial Officer of Huawei Technologies Co. Ltd., Meng Wanzhou, landed in Vancouver’s International airport. The 46-year-old Chinese business executive had been on her way to catch a connecting flight to Mexico when she was detained by RCMP due to an extradition request filed by the American government. This situation has led to Canada being embroiled in the heated political and economic conflict between China and the United States, two of the world’s largest economies and most influential states.

The allegations against Wanzhou claim that she had falsely declared two companies, Skycom Tech Ltd., a telecom equipment seller, and its holding company, Canicula Holdings Ltd., as separate entities from Huawei. However, recent evidence of a Huawei executive being appointed as a manager of an Iranian branch of Skycom as well as three Chinese businessmen possessing signing rights for both Huawei and Skycom bank accounts in Iran have shown Huawei’s involvement in controlling both companies. Simply put, Huawei had used Skycom to sell telecom equipment to Iran and to move money through the international banking system, violating the economic sanctions that America had placed against Iran at the time. For her role in the scandal, Wanzhou is accused of misrepresenting information to multiple international banks and committing financial fraud.

Both Huawei and Wanzhou have denied the allegations. In response to the arrest, China has threatened Canada with severe consequences if Wanzhou is not immediately released, claiming her arrest to be a severe and unreasonable breach of her legal rights. In fact, China seems to already be making good on its threats. In the days following Wanzhou’s arrest, China has detained two Canadians, Michael Kovrig and Michael Spavor, alleging that they had been involved in activities that have threatened China’s national security. Additionally, a third Canadian, Robert Schellenberg, has been sentenced to death after a Chinese court ordered a sudden retrial to his case claiming that his original 15-year sentence for drug smuggling was an insufficient punishment. Western analysts have interpreted that these arrests and death sentence are politically motivated to pressure Canada into releasing Wanzhou.

Are Canada’s actions reasonable? Could an alternate course of action have been taken to avoid this political turmoil with China? Below, we take a closer look at our country’s extradition process:

What is extradition?

Extradition is a process that involves two states, a requesting country and a host country. The requesting country is one that seeks the arrest and delivery of a person who has violated its laws. The host country is one in which the individual is located, and through a set procedure, will detain and deliver the person of interest to the requesting country.  

In Canada, the extradition process is led by the country’s Department of Justice. The Extradition Act grants the Minister of Justice, Jody Wilson-Raybould, and by delegation, the International Assistance Group (IAG), the ability to review and coordinate extradition requests that Canada is either issuing to or receiving from other countries. The countries that Canada collaborates with in this process are referred to as “extradition partners,” and include countries with which Canada has an established extradition agreement, such as the United States. In this case, the extradition agreement Canada holds with the United States is the central institutional driver of its arrest of Wanzhou.

Who is extradited?

Individuals who face extradition typically fall into one of three categories: (1) Individuals who have been charged with a crime but have not yet been tried, (2) those who have been tried and convicted but have evaded law enforcement, and (3) those who have been convicted in absentia. In this case, Wanzhou falls under the first category.

What does the Canadian extradition process look like?

  1. Extradition request: The process begins with an extradition request from a country that is an extradition partner to Canada. For a person to be extradited from Canada, the principle of double criminality must apply, in which the criminal offense that the individual is facing must be illegal in both Canada and the extradition partner country. There are two ways a foreign country can seek extradition of a person from Canada. The first being through the provision of a formal extradition request to the IAG, and the second, through requesting the provisional arrest of a fugitive and later submitting a formal extradition request within a specified period of time. Wanzhou’s extradition request falls under the latter as the United States has requested her provisional arrest and now has up to 60 days, until Jan 30th, 2019, to submit a formal extradition request.
  2. Arrest and hearing: Once an individual is arrested, they are brought before the Supreme Court of the province or territory where the arrest was made. At this occasion, a future bail hearing is scheduled.
  3. Authority to proceed: Upon receiving the extradition request and required documentation, Justice Minister Jody Wilson-Raybould has 30 days to decide whether to issue an Authority to Proceed, which authorizes the start of the extradition proceedings.
  4. Extradition hearing (Judiciary): Once the Authority to Proceed is granted, the Canadian Court must determine if there is sufficient evidence for a person to face extradition. Simply put, the court would determine whether the evidence that has been brought forth by the extradition partner is sufficient that a trial would take place had the crime been committed in Canada.
  5. Ministerial Phase (surrender of the person to be extradited): This part of the process involves the Minister of Justice deciding whether the person should be surrendered to the foreign state.
  6. Possible appeal: Individuals can appeal the decisions of the extradition judge or request a judicial review of the Minister’s decision to a Court of Appeal. In the occasion that a Court of Appeal upholds the decisions, the individual may take their appeal to the Supreme Court of Canada.

So, given the political tension that Wanzhou’s arrest has caused with China, could Canada have taken a different course of action? The simple answer: No. Canada’s extradition process is a judicial one. This means that so long as the extradition process is followed, politicians are unable to influence the outcome as the independence of judges and the rule of law must be respected, despite unfavorable political consequences.

Sarah Baker is currently completing her second year in the Master of Public Policy program at the Munk School of Global Affairs and Public Policy, with a specialization in public health policy. She currently is a policy intern with the City of Mississauga, and has experience in consulting and the non-profit sector. In the long run, she hopes to influence the development and refinement of health policies to improve the quality and accessibility of mental health services.