On May 27, 2020, the Canadian court ruled that the case of Huawei executive Meng Wanzhou, who is fighting against her extradition to the United States, can move forward. The judge found that the case meets the threshold of double criminality meaning the [fraud] charges would be crimes in both the US and Canada. The Chief Justice Heather Holmes ruled that the crimes Meng Wanzhou was charged with in the US would also have been crimes in Canada in 2018 although Canada did not have economic sanctions against Iran when Meng was first detained. Moreover, the Chief Justice found that the US measures “were not fundamentally contrary to Canadian values.” And in fact, should the Court take on Ms. Meng’s approach of isolating specific facts, it “would seriously limit Canada’s ability to fulfill its international obligations in the extradition context for fraud and other economic crimes.”
With all this being said, I believe the Canadian Court is double-dipping on the threshold of double-criminality.
I. The Canadian Court is Double-Dipping in Applying the Double-Criminality Principle to Meng Wanzhou’s Case
The Merriam-Webster dictionary defines to double-dip as “to obtain money from two sources at the same time or by two separate accounting methods.” An example to explain this definition is “to draw a pension from one government department while working for another.” In the Court’s ruling, the Court expresses the double-criminality principle as “The principle derives from the foundational principle of reciprocity, by which states are not required to extradite a person to a foreign jurisdiction for conduct that does not amount to a criminal offense in the requested state.” M.M. v. United States of America, 2015 SCC 2 at para. 207, emphasis added.
To cut to the chase, the crime at issue in Meng Wanzhou’s case was fraud. The Court defined it as “Fraud in Canada thus requires dishonest conduct with a corresponding deprivation.” R. v. Zlatic, 1993 2 S.C.R. 29, emphasis added.
Here, the Canadian Court double-dips by using US law [sanctions on Iran] to define what would be illegal in Canada defeating the purpose of the threshold of double criminality. Namely, the Canadian Court uses US law to meet the element of deprivation required to be guilty of fraud in Canada. The problem is although it can be argued that there was deprivation in the US as a result of Meng Wanzhou’s representations, the same cannot be said in Canada because at the time of the incident Canada did not have a law sanctioning Iran. Therefore, the element of deprivation could not have been met because those representations regarding Huawei’s business dealings in Iran were not per-se illegal pursuant to Canadian law.
Nevertheless, to get around this dilemma, the Canadian Court rules that “while the court must not transplant to Canada the law supplying the definition of the offense charged, the court does transplant the accused’s environment, including the local institutions of the requesting state, and the laws effecting legal powers and rights and fixing the legal character of the persons concerned.” However, this principle on its face goes contrary to the policy of double-criminality. If the Court is to take into context the accusing countries local environment including the local institutions and laws of that state, then all that is needed to be extradited from Canada is to be sure that the nation-state (1) has an extradition treaty and (2) generically and conceptually has a law that is both a crime in Canada and the requesting nation-state. The double-criminality element is merely there as a channel to double-dip.
In conclusion, although my prediction was right, for different reasons, the Canadian court is double-dipping on the principle of double-criminality.
孟晚舟未能获释,加拿大法官耍流氓 Canadian judge Double-Dipping the Double Crimina
作者：劉龍珠律師 于 2020-5-29 03:52 发表于 最热闹的华人社交网络--贝壳村
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发表评论 评论 (4 个评论)
- 3 回复 NO_meansNO
- The Honorouble Justice Holmes has already concluded that Ms. Meng's concealment of the truth from HSBC has amounted to a fraud in Canadian law. The Justice used a legal concept of “conduct-based” in making her decision, while your arguments come from a different angle of “offence-based”.
Between these two concepts, “conduct-based” merely considers if one's conduct satisfies definitions of criminal law, not nescessarily regarding any crime being committed, while the scope of “offence-based” is narrower and constrained with whether a crime would actually take place at a specified location.
Neverthless, this extradition is only a legal process to hand over Ms. Meng at USA's request rather than a court TRIAL of her criminal activities. Whether she is guilty or not is up to an American court. Therefore, it is not unreasonable for the Canadian courts to apply “conduct-based” concepts on an extradition hearing. In fact, Canadian courts have precedent in this regard.
Having said that, Ms. Meng's legal battle with Canada against her extradition is far from over. It is like watching a series drama show in court. Let's see how it will unfold.
- 0 回复 NO_meansNO
- 律师团拿大钱不干实事，看来孟大姐得走一趟美国免费游，包吃包住包导游。
