Article content

In appearing to entertain a proposal for her to return to China in exchange for an admission of wrongdoing, as reported by the Wall Street Journal last month, the United States could be setting a trap for Huawei executive Meng Wanzhou.

I’ve been the lawyer on several cases where I was instructed by clients to make a deal with a U.S. prosecutor. American officials usually won’t entertain such a notion without the promise of a guilty plea, and without the person physically being in the United States.

The trouble is, if Meng admits to wrongdoing, she would have a criminal record and any number of countries (including Canada) could use this against her. I speak from painful experience.

One of my clients, a U.S. citizen, was the CFO in a U.S.-registered corporation run by her Canadian husband. Their two young sons were born in Canada. The Americans wanted to extradite the couple for the alleged reckless abandonment of a building in St. Louis.

Article content continued

The husband fought his extradition for years, eventually going to the Supreme Court of Canada. When that esteemed body turned him down and he was returned to the United States, the U.S. Department of Justice (DOJ) asked Canadian officials to arrest my client and turn her over to U.S. marshals to face trial. She was arrested and taken to a border crossing against her will.

I applied to the B.C. Supreme Court for a habeas corpus order, requesting that the court order the production of the prisoner before she could be turned over to U.S. authorities. Rather than issuing the order, the court adjourned the matter to the afternoon, allowing an immigration official to hand her over to U.S. marshals on a U.S.-bound ferry. The judge then declared that he had no jurisdiction since she was on a U.S.-registered vessel, which is considered American territory, even though it was still in a Canadian harbour.

My client was held in custody in the United States for weeks before being sent to St. Louis to be reunited with her children. The prosecutor told her that if she pleaded guilty, she would get “time served” and could go free to be with her little boys. So she did.

However, as far as the courts were concerned this meant that her extradited husband must be guilty, as well, and he received a much more severe sentence.

In a second case, the CEO and CFO of a Canadian-registered corporation, both of whom were Canadian, were sought for extradition for an alleged telemarketing scam. I represented the male CEO; another lawyer represented the female CFO. They were not married at the time of the alleged offences and extradition proceedings, although, thrown together by circumstance, they had three kids together and did eventually marry.

Article content continued

They were naturally concerned about what would happen to their children should they both be extradited. The CFO’s lawyer negotiated a deal not unlike that proposed for Meng: one day in prison (the day she appeared in court). The FBI and assistant U.S. attorney drafted the statement she would have to sign that implicated both her and her common-law husband.

When she was taken before a court in Los Angeles on a Friday, she pleaded “not guilty.” All deals were off. The U.S. DOJ worked on her over the weekend, putting her up in a swank hotel and taking her to Disneyland. On Monday they tried again and this time she pled “guilty.” She was allowed to fly home to Vancouver to be with her kids that day.

Her husband fought his extradition, won an appeal, then faced another extradition hearing. Tragically, she ended up dying of cancer. One of the last things she did was testify at her husband’s extradition hearing, saying that she had been forced into pleading guilty and implicating him, though he was innocent.

However, her original “confession” weighed heavily against him at his second extradition hearing. Ten years after the proceedings started — 20 years after the alleged fraud — he is still in custody in Georgia, appealing his conviction for fraud in California and still insisting he is innocent. Their three children have been left for their maternal grandparents to raise. So much for justice.

Another of my clients was the CEO of a corporation that constructed a pipeline from eastern Europe to China for a large U.S.-based corporation. It and several of its executives were accused of corruption for allegedly bribing officials at both ends of the pipeline — a contingency for which it had budgeted as being “the cost of doing business” in those countries.

Article content continued

My client negotiated the contracts for most of the construction work. The firm’s executives were charged with corruption but named my client as the culprit. He travelled to Washington voluntarily to make it clear to the DOJ that he had nothing to hide. He was not arrested and was allowed to go home to Europe.

My client and his family had been preapproved for landing as permanent residents in Canada. However, when they tried to immigrate to Canada three years ago, he was arrested at Vancouver International Airport on a provisional arrest warrant, just like Meng. Canadian immigration authorities refused him and his family entry on the basis that he was suspected of criminality.

While he was held in custody in Canada, his U.S. lawyers negotiated a deal very much like the one the U.S. is now proposing in the Meng case, contingent on his acceding to U.S. jurisdiction. He trusted the U.S. DOJ to honour its agreement and was taken to the U.S., where he put up $5 million in bail so that he could rejoin his wife and son in Europe.

Owing to circumstances beyond his control, my client missed his court date. For failing to appear he forfeited his bail and was sentenced to a year in prison, even though, according to his lawyers, the DOJ had agreed in advance that he would only serve one day.

The point is that it isn’t up to the DOJ or the lawyers. The courts do what they want to do and what, in the United States, they are wont to do: pile on the time.

In the last case, the argument was made that the U.S. had jurisdiction over an American corporation. However, my client’s corporation, like Huawei, was not registered in the United States. My client had not set foot there before travelling to Washington to try to clear his name. Arguably, the U.S. had no jurisdiction over him or his company. The same case can be made about Meng.

Article content continued

It is increasingly obvious that the issuance of the indictment against Huawei was a political move designed to usurp its success in the 5G market and give U.S. corporations dominance in that burgeoning field. The United States clearly miscalculated what a mess it would create by adding Meng to the indictment, alleging that in Hong Kong in 2013, she assured a British bank official what she may well have believed: that a Huawei subsidiary was not breaking U.S. sanctions against Iran by providing banned goods and services.

Ultimately, Meng’s name must be struck from the indictment. Otherwise, even if Canada’s minister of justice orders her to be discharged, the United States can go after her again and again, whenever she happens to land in a country with which the Americans have an extradition treaty.

National Post

Gary Botting is a Vancouver-based lawyer and the author of several books on extradition, including “Extradition between Canada and the United States,” “Canadian Extradition Law Practice” and “Halsbury’s Laws of Canada – Extradition

https://nationalpost.com/opinion/gary-botting-is-the-u-s-laying-a-trap-for-meng-wanzhou