And if you've got time on your hands … and curiosity about the case … why not check out our podcast?!! https://t.co/i67DeOusmn
— Jason Proctor (@proctor_jason) May 21, 2020
In March of 2020 I began a series of posts on extradition. In the first I noted that “As The World Becomes Smaller, Extradition Becomes Bigger“. That post discussed the growing prevalence of extradition and noted the recent cases of Julian Assange (UK), Meng Wanzhou (Canada), Ruhollah Nejad (France) and Michael Lynch (UK). In each of these cases the United States is seeking the extradition of individuals to the United States. The case of Anne Sacoolas is an example of Britain seeking the extradition of a U.S. citizen from the United States to Britain. That post also included the assertion that:
The United States is using extradition treaties with other countries, to require those other countries to arrest and extradite individuals for crimes which did NOT occur in those countries or in the United States. To put it another way, the United States apparently sees extradition treaties as way to facilitate it’s role as the world’s “Lone Ranger” – scouring the world for people it doesn’t like – with every treaty parter playing the role of “Tonto”. (Apparently, “Jay Silverheels, who played The Lone Ranger’s sidekick Tonto in the TV series and movies, was born to a Mohawk chief on the Six Nations Reservation in Brantford, Ontario …”. This would make Canada a natural “Tonto” in the use of extradition treaties to police the world.)
When the U.S. France extradition treaty was sent to the U.S. Senate for approval, President Clinton noted that:
The United States recognizes the extraterritorial application of many of its criminal statutes and frequently makes requests for fugitives whose criminal activity occurred in foreign countries with the intent, actual or implied, of affecting the United States.
In Part 2 of my extradition series, I described the Canadian extradition tools and process.
Part 3 – Understanding “dual criminality”: A requirement found in most extradition treaties
The following tweets underscore the international importance of “dual criminality” – the requirement that a necessary condition for extradition is that the conduct be a crime in both countries. Notice how each case raises the issue of whether the conduct constituting the crime, was actually a crime in both countries.
Question: Is the requirement of “dual criminality” met in each of these examples?
CIRCA 2015: Although this didn't appear to have anything to do with the USA: FIFA Officials Arrested on Corruption Charges and extradited to from Switzerland to the USA https://t.co/b7JgE1RQjn pic.twitter.com/tPiCU5wPO3
— U.S. Citizen Abroad (@USCitizenAbroad) March 27, 2020
Canada’s decision of issuing an “Authority to Proceed” is contrary to the Extradition Act, as the element of dual criminality can't be established; it’s a misstep by Canadian authorities: Attorney Long Z. Liu, licensed by the State of California and in Federal Courts #MengWanzhou https://t.co/pozBCqQFKo
— Global Times (@globaltimesnews) March 1, 2019
In Scotland sedition is not a criminal offence. For a successful extradition, first, there must be dual criminality, i.e. the alleged offence must be a crime in both requesting and requested state. Second is the test of extraneous considerations, e.g. is it politically motivated? pic.twitter.com/egCo4AkQWs
— Dr Paul Monaghan (@_PaulMonaghan) March 26, 2018
Why dual criminality clause may make Vijay Mallya's extradition difficult https://t.co/POcHVS8zfT pic.twitter.com/kt0M5Rsz4A
— The Times Of India (@timesofindia) July 19, 2017
Answer: Each of the above tweets references an example where the “dual criminality” may not have been met.
In basic terms the requirement of “dual criminality” means that Country B is not required to extradite a person to Country A, unless the conduct giving rise to the crime in Country A, would also give rise to criminal conduct in Country B.
For example: Under the Canada US extradition treaty, Canada would not be required to extradite Meng Wanzhou to the United States for the crime of breaching US sanctions against Iran. Why not? Because Canada has no sanctions in Iran. But, Canada would/might be required to extradite Meng Wanzhou to the United States for the crime of fraud because fraud in Canada would be a violation of Canadian law.
Or as a recent CBC article describes the issue:
During the double-criminality hearing, Meng’s lawyers argued the whole case comes down to economic sanctions the U.S. reimposed against Iran in 2018 when it left an international deal meant to stall the Islamic republic’s nuclear ambitions.
Canada doesn’t have those same sanctions and so, the defence claims, Meng’s alleged lies would be harmless north of the border because a bank in Canada wouldn’t risk anything by dealing with a company that did business in Iran.
‘Right needs to be done’: Meng Wanzhou’s lawyers make final pitch to judge
But the Crown argued that the case was one of fraud, plain and simple, and that the issue of sanctions was essentially a red herring.
They say that the issue of foreign sanctions should only be considered as a means to understand the context of the risks that HSBC would be taking by providing finance to a company on the wrong side of U.S. law.
Therefore, in an extradition request the issue is NOT what the crime is labeled, but rather whether the conduct giving rise to the crime would be a crime in both countries.
Excerpt from a more scholarly discussion
II. Foundations of the Double Criminality Rule
It is a basic precept of extradition law, contained in many states’ domestic extradition legislation and bilateral treaties, that there be the threshold requirement of double criminality. Under this rule, the offence for which the fugitive is sought must, based upon reciprocity, be one for which the requested state could in turn be able to make a request. It may be seen as being premised on the maxim nulla poena sine lege, or “no punishment without law”.3 As Oppenheim succinctly stated: “No person may be extradited whose deed is not a crime according to the criminal law of the state which is asked to extradite as well as the state which demands extradition”. 4
Double criminality has nevertheless not been viewed as a principle of customary international law that is automatically part of domestic law. Rather, it is a creature of treaty and statute. One writer has argued
that it “is not so much a rule of international law as a consideration based on policy and expediency”. 5 Thus, the fugitive cannot raise double criminality as a bar to extradition if the applicable treaty or statute is
silent. In Factor v. Laubenheimer,6 the Supreme Court of the United States held that the rule is based not on international law but on treaty. This position has recently been reinforced by the Supreme Court of Canada in United States v. Charles McVey II7 where in that court and the lower courts “reference was made to abstract principles and ‘rules’ of extradition such as double criminality, specialty and reciprocity as if they had independent force”. The court concluded that this was not the case; that there is no obligation to extradite under customary international law or under the common law; that treaties create the obligation to do so and that therefore the parameters of those obligations must be found within the four corners of the treaties. The customary international law based upon the practice of states ‘may no doubt have a certain value in interpreting the law’, [as noted in another decision of the same court in United States v. Allards] but in the end the international duty must be found in the terms of the appropriate treaty”.9
Osgoode Hall Professor – Sharon A. Williams – writing in 1993
The Double Criminality Rule Revisited
Interesting. Note in particular the statement that the “double criminality” requirement is NOT a provision of international law, but rather a specific provision of domestic statute and/or extradition treaties. We will see that the “double criminality” requirement is NOT a feature of the US UK extradition treaty.
The Dual Criminality Rule And Canadian extradition law:
Canada adopts the general principle of extradition law that the conduct giving rise to the extradition reqeust must be a crime in both countries. https://t.co/senjtxEHC0 pic.twitter.com/3wVjaGSdua
— U.S. Citizen Abroad (@USCitizenAbroad) May 21, 2020
Brock Martland, a prominent Vancouver lawyer who is familiar with extradition law, said Friday that in most extradition cases double criminality is a bit of a “non-issue” since many of the crimes in question — giving as an example bank robbery — are clearly crimes in both Canada and the U.S. and don’t change over time.
“There’s any number of different kinds of extradition hearings, but in the run-of-the-mill case, there’s not a lot of debate, not a lot of analysis that goes into double criminality because it’s pretty obvious that if someone did that same conduct in Canada, yes that would be a crime here too,” he said.
“This has a lot more nuance, because as I understand the argument, the defence is saying there’s just no way, given Canada’s international obligations at the time and the fact that we didn’t have equivalent sanctions in place, there’s no way the same conduct would have amounted to a crime if committed in Canada.”
‘Double criminality’ issues in Meng case unlike ‘run-of-the mill’ extraditions: lawyer
The principle of “dual criminality” in action:
B.C. Supreme Court to rule in Huawei executive Meng Wanzhou’s extradition case on Wednesday https://t.co/5RjXG7bAhf pic.twitter.com/YW2yHeHFsL
— U.S. Citizen Abroad (@USCitizenAbroad) May 22, 2020
On Wednesday May 27, 2020 a court in British Columbia will deliver an answer.
But, Canada would/might be required to extradite Meng Wanzhou to the United States for the crime of fraud because fraud in Canada would be a violation of Canadian law.
It is understood that fraud in Canada is a violation of Canadian law.
Let’s say, however, that Meng isn’t accused of fraud in Canada and isn’t accused of fraud in the US–but is accused of fraud in China. Let’s say, furthermore, that fraud in China is a violation of US law (US law applies extraterritorially) but fraud in China is not a violation of Canadian law (Canadian law does not apply extraterritorially).
Is Canada required to extradite to the US in that scenario?