Liberty and justice for all United States persons abroad

The Isaac Brock Society

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Manifest Destiny – 21st Century Version

The United States exports more laws than any other country on earth (with a little help from extradition treaties)

(This post will be best understood in conjunction with Part 4 and Part 5 of this series on extradition.)

The full text of the Justice Holmes decision is here. The guts of the decision, ruling that the “double criminality” requirement has been satisfied, is found in paragraph 82 which reads as follows:

[82] Ms. Meng’s approach to the double criminality analysis would seriously limit Canada’s ability to fulfill its international obligations in the extradition context for fraud and other economic crimes. The offence of fraud has a vast potential scope. It may encompass a very wide range of conduct, a large expanse of time, and acts, people, and consequences in multiple places or jurisdictions. Experience shows that many fraudsters benefit in particular from international dealings through which they can obscure their identity and the location of their fraudulent gains. For the double criminality principle to be applied in the manner Ms. Meng suggests would give fraud an artificially narrow scope in the extradition context. It would entirely eliminate, in many cases, consideration of the reason for the alleged false statements, and of how the false statements caused the victim(s) loss or risk of loss. By that approach, Wilson, described above, would, it seems, require a different result.

As one Brock comment suggests:

Imho, the decision is really political whether or not Huawei/G5 is involved. One thing is evident ,no matter who is spinning the yarn, the US started it all and Canada will feel the economic pain whatever the outcome is , either from the US or China,in this case. Always forced to side off with the US in all foreign affairs and internal, it seems more evident by the year that Canada sometime in the future will become another star on the US flag.

A thoughtful series of comments about the Justice Holmes decision begins here.

Big picture view: Leaving aside the legal technicalities and the nattering over matters of form/substance, etc …

It seems clear that from a US perspective the purpose of an extradition treaty is to export US law to other lands. Since Canada is the United States’ biggest trading partner, doesn’t it seem reasonable that Canada should be the export destination of the largest number of US laws?

It’s the 21st Century version of the doctrine of “Manifest Destiny”. Don’t give up your US citizenship just yet. You may, in the future, have (as a US citizen) a “preferred citizenship status” in Canada.

20 thoughts on “The extradition process – Part 6: The Justice Holmes Verdict In The Meng Wanzhou case – “It’s US Law! Arriving Soon To A Country Near You!””

  1. One thing I find interesting is that if you are a Canadian judge who strikes down domestic Canadian law right and left on Constitutional grounds is does very little to hurt your career prospects as a Judge(Justice Canada plays a big role in nominating and appointing judges). On the other hand, doing things as a judge that is perceived to harm international relations with the US does seem to be something that hurts your career prospects.

    Second, over the past ten years, I have come to realize there is a lot of botched Charter litigation especially back during the early days of its enactment. As Alan Young says there is a right time and place for Charter litigation and a lot of times litigants including himself take it on in the wrong place and time.

  2. The third piece I thought about overnight is in true Canadian fashion if I was Meng’s lawyer I would strongly consider challenging the “fraud” section of the Criminal Code I think it is 310 on Charter grounds. Of course the nasayers are going to say Tim are you out of your mind crazy no Canadian judge is EVER going to say you have a charter right to defraud people. But here is the kick Justice Holmes is basically saying that as a matter of Canadian law it is wrong to ever tell a lie in the context of any exchange of goods and services and a violation of Criminal Code 310. I think there are many contexts where I think might be a troubling interpretation of the Criminal Code in a charter context.

    For example the Supreme Court of Canada has ruled that sex workers have a constitutional right to engage in their services(Bedford) and that consensual sexual activity is a fundamental part of Canadian life(La Baie). Yet, I can tell you that very few sex workers tell their landlords their true occupation. So by Justice Holmes interpretation they can all be charged en masse for Criminal Code fraud even if they actually did tell their true profession there landlords would technically be legally obligated to rent them(but everyone knows that many would try to wiggle out of it). So in a Justice Holmes view of the world ALL lies are bad(This is an obvious implication for Canadian US Persons).

    The issue is in the context of something like sex workers or other stigmatized or disadvantaged groups groups that the Supreme Court of Canada have ruled are stigmatized and disadvantaged are you really going to say they can all be rounded up and throw in jail for telling some fibs in their daily lives.

  3. The final piece if you read through ruling you already get the hint of what would be the Charter defense of the Crown if you had a Charter trial on the fraud section of the Criminal Code which is fraud is very very bad and Parliament and the Crown need the absolutely most wide-ranging and extreme interpretation of the law to combat the harms fraud entails. The problem is this IS the type of language previous governments have used in previous Charter trials and typically the government ends up losing. I can most definitely imagine the government bringing dozens of expert witnesses to discuss every telephone scam ever invented and all the evils of fraud. The issue is this is exactly what the did in Bedford saying the government needed to criminalize all forms of paid consensual sexual activity in order to combat the evils of unpaid non-consenual coerced sex “trafficking.” In Bedford the crown attorney’s failed quite badly. The video above with Alan Young goes into how this works and Crown attorney’s tactics.

  4. Another quasi defense from the standpoint of the government is a US Supreme Court case called Bryson v. United States which basically says it is “wrong” to lie even if the government or other party has no right to ask the question in the first place. I emphasize quasi defense as this is a US not Canadian case.

    https://supreme.justia.com/cases/federal/us/396/64/#tab-opinion-1948351

    Notwithstanding the fact that the Government has proved the elements necessary for a conviction under § 1001, the petitioner would have us say that the invalidity of § 9(h) would provide a defense to his conviction. But, after Dennis, it cannot be thought that, as a general principle of our law, a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government’s right to ask questions [Footnote 12] — lying is NOT one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.

  5. In the case of a question asked by a bank, either declining to answer “the question” or answering it honestly effectively gives the information the citizen wants to avoid giving. (And we all know which question I’m referring to.)

    Personally, I’m going to keep right on lying. If it ever becomes an issue (it won’t) my defense will be that the question was never asked (there’s no record), or I that didn’t understand the wording of the question (are you tax resident of another country?), or that I haven’t lived there for 50 years so how could I possibly be a US tax resident (never heard of CBT).

    These legal wranglings give me a headache. Whatever happened to doing the right thing? And the US government on its high horse over someone committing “fraud” is a sick joke, especially considering who is currently President.

  6. As a practical matter Canada rarely prosecutes many Criminal Code Section 380 fraud cases nonetheless that doesn’t mean it isn’t challengeable under Charter grounds. Canada really historically does’t prosecute many prostitution cases under either the old or “new” laws either. Back at the time of Elliott Spitzer’s “busting” there were a dozen similar escort “agencies” in Toronto just like Spitzer’s Emperor’s Club VIP or NY Confidential. The most prominent Toronto “madam” is on friggin Twitter. The Toronto Police would have to be blind not to know what is going on or know who “Madame” Hollander is. This is both under the old pre Bedford laws and the new Bill C-36 Harper brought in. What Toronto doesn’t have as a practical matter are out and out brothels like Stilleto in Sydney Australia but even in Sydney places likes Stilleto are “only” maybe a third of the sex industry the rest of which are independent workers, escort agencies, and “illicit” massage parlours. Toronto I can assure has plenty of representation in these areas no matter what the Criminal Code says.

    For those of you not familiar with Governor Spitzer or “high class” prostitution the preview clips give a quick overview. Suffice it to say there are plenty of “Emperor’s Club VIP” type agencies in Toronto, Vancouver, and Montreal right at this very moment that no one in the police lays a hand on(I have some thoughts as to why that is) but even so there have been multiple successful charter challenges against prostitution laws.

    https://www.youtube.com/watch?v=0ieJ_8HMV_s

  11. ‘
    “In May 2018, Amnesty International and the British Columbia Civil Liberties Association jointly called for the federal government to launch a thorough and independent inquiry into Hassan Diab’s extradition to France, including the conduct of Canadian officials during extradition hearings.

    In 2018, Minister of Justice Jody Wilson-Raybould ordered reviews of the extradition. Murray Segal was appointed to conduct the external review. Segal’s findings were provided to Wilson-Raybould’s successor, David Lametti, in May 2019, and subsequently made public several months later. The review cleared Canadian prosecutors of any wrongdoing, but also made recommendations to improve the extradition process. Diab’s lawyer, Donald Bayne, called the review a “whitewash”.

  13. Why are so many countries and international organizations bowing to the US government when such a lunatic is in charge of the country? Will other developed nations like Canada, UK, Europe, Australia, etc. ever wake up? With yesterday’s announcement of the US terminating its relationship with the WHO, might not now be an opportune time?

  14. Trump was right about the WHO–it is irredeemably corrupt (like most of the UN), and its present leadership is in China’s pocket.

  15. And ,of course, Trump isn’t corrupt and we are all here to praise our glorious and righteous neighbor to the south.

  16. Do you think the US will become more aggressive in its enforcement of citizenship based taxation now that COVID-19 is causing the country to lose so much money?
    (think GFC)

  18. @ Isaac
    The IRS may up the anti with threats and warnings but there is nothing they can do unless you volunteer information and pay up. They cannot collect from US dual citizens living outside the US .

  19. @ Robin
    “Why are so many countries and international organizations bowing to the US government when such a lunatic is in charge of the country? “

    Because the US dollar is still used as the world reserve currency and many nations are also heavily invested , pension funds etc, in the US stock market.
    Until they find an alternative currency to trade then they keep having to feed the tiger.

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