Vera M. Kachnowski and Jolène LaVigne-Albert

The much-watched diplomatic battle over Meng Wanzhou, CFO of Chinese telecommunications giant Huawei, is in the spotlight again this month as her extradition hearings begin in British Columbia. In December 2018, Ms. Meng was arrested by Canadian authorities in Vancouver at the request of the United States in connection with fraud and Iranian sanctions-related charges against her and Huawei in the Eastern District of New York. Ms. Meng denies the allegations and has been fighting extradition on various grounds, including—as extensively reported by the media—the contention that the United States is improperly using her prosecution for economic and political advantage.

Obtaining a stay of extradition from Canada to the United States is no easy feat, as the vast majority of such extradition requests are granted. See, e.g., Department of Justice of Canada, Extradition Fact Sheet. On Dec. 9, 2019, however, the Supreme Court of British Columbia granted Ms. Meng's request for a potentially helpful resource: document disclosures related to another of her extradition defenses, alleged abuse of Canadian judicial process at the time of her arrest. United States v. Meng, 2019 BCSC 2137. The decision provides insight into the standards for obtaining discovery in Canadian extradition proceedings—a more formal test with potentially wider scope than the discovery typically available in extradition hearings in the United States.

British Columbia Extradition Court Decision

Ms. Meng sought disclosure of documents from the Canada Border Services Agency (CBSA), the Royal Canadian Mounted Police (RCMP), and the Department of Justice Canada (DOJ) related to her treatment at the Vancouver International Airport. Specifically, Ms. Meng claims that "she was unlawfully detained, searched, and interrogated as part of a plan between Canadian and American authorities to have … CBSA officers misuse their customs and immigration powers to covertly collect evidence for the … FBI." Meng, at ¶2. Even though an outstanding provisional warrant ordered Ms. Meng's "immediate arrest" upon landing in Vancouver, it was undisputed that CBSA officers searched Ms. Meng's luggage, seized several electronic devices (and their passcodes), and questioned her as part of a process that lasted almost three hours, before the RCMP arrested her, informed her of her constitutional rights, and gave her an opportunity to exercise them. At that point, the CBSA provided the RCMP with the seized devices and passcodes. Ms. Meng contends that the delay in her arrest allowed "CBSA officers [to] covertly use their powers not for true customs and immigration purposes, but rather to improperly gather evidence to help the US investigation and prosecution," id. at ¶22, which was improperly furnished to U.S. authorities without following required judicial procedures.

In Canadian extradition proceedings, as opposed to criminal proceedings, "more attenuated levels of procedural safeguards" are required. Id. at ¶35. As a result, a person facing extradition is "not entitled to the level of disclosure enjoyed by an accused facing criminal charges for trial in Canada," but instead is generally entitled only to materials the requesting state has submitted to support the extradition request. Id. at ¶36. That said, Canadian law provides the possibility of additional disclosure related to a constitutional issue under the Canadian Charter of Rights and Freedoms that might be raised in the extradition proceedings.

In ruling on Ms. Meng's request for disclosure, the court considered a three-part test, known as the Larosa test, for a 2002 decision by the Court of Appeal of Ontario that summarized the principles applicable to disclosure rights in extradition proceedings as previously enunciated by the Supreme Court of Canada. R. v. Larosa, 2002 CanLII 45027 (ON CA). The Larosa test has since been adopted by several other Courts of Appeal in Canada. See, e.g., United States of America v. Tyndall, 2019 ABQB 330 (collecting cases); Turenne v. USA, 2004 MBCA 79.

For the first part of the Larosa test, the court assessed the likelihood of success of Ms. Meng's constitutional arguments in an ultimate application to stay her extradition. Even if Ms. Meng were able to prove that her Charter rights were disregarded in the hours leading up to her arrest, and/or that Canada illegally shared information with the United States in violation of the procedures mandated by the Mutual Legal Assistance Act of Canada, it was not clear to the court whether that would be sufficient to trigger the "drastic and exceptional remedy" of a stay of her extradition. Meng, at ¶49. But the court held that it could not "rule out the possibility that [such evidence] would [be sufficient]" to stay the extradition, thereby concluding that the first prong of the Larosa test was satisfied. Id.

The second part of the test required the court to assess the record to determine whether the abuse of process theory had an "air of reality"—that is, "some realistic possibility that the allegations [of abuse of process] can be substantiated if the disclosure orders requested are made." Id. at ¶51 (internal citations omitted). Faced with a record where the parties largely agreed on the main events but offered competing inferences of how to interpret that evidence, the court sided with Ms. Meng, noting that the Attorney General of Canada's (the "Attorney General") attempts at addressing gaps in the evidence was "strategic in its character yet impoverished in its substance." Id. at ¶55. Notably, the court was skeptical of two gaps in the Attorney General's evidence: (1) its failure to provide any additional information about what the Attorney General characterized as a "simple error" by the CBSA when it illegally turned over to the RCMP passcodes for Ms. Meng's electronic devices; and (2) its incomplete and puzzling evidence that the RCMP improperly sent serial numbers and other identifiers of Ms. Meng's electronic devices to the FBI. Id. The court concluded that the "air of reality" part of the test was met.

The third prong of the test—whether the disclosure sought was relevant to the allegation of abuse of process—was easily satisfied. Id. at ¶¶59-61. Ms. Meng sought documents pertaining to the events surrounding her arrest, notably relating to the sharing of information with U.S. law enforcement, and the names of FBI officers that had been redacted in previous disclosures. Id. at ¶33. Therefore, the court ordered Ms. Meng's requested document disclosures.

While disclosure was granted, the court noted that it is only "in the rarest of cases, where [a] Charter breach directly affects the fairness of the Canadian judicial process, and the breach is so serious that no lesser remedy will protect the integrity and repute of the administration of justice," that a stay of extradition will be granted. Id. at ¶46. Thus, it may be that even if Ms. Meng proves that Canadian authorities disregarded her constitutional rights in the hours leading up to her arrest, and/or disregarded Canadian law in sharing with the United States information garnered during her immigration search and seizure, Canada will nevertheless extradite Ms. Meng to be tried in New York.

The U.S. Approach

While Ms. Meng still faces challenges in her extradition fight, the disclosures she received are more substantial than what a similar relator facing extradition from the United States would have been likely to obtain. In extradition hearings here, "there is no explicit statutory basis for ordering discovery." Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir. 1988). Although "the extradition court has the inherent power to order such discovery procedures as law and justice require," id., this discretionary power typically hinges on magistrate judges' mandate to consider probable cause. See, e.g., United States v. Kollmar, No. 19MJ70677MAG1KAW, 2019 WL 4261064, at *3 (N.D. Cal. Sept. 9, 2019) ("[b]ecause the purpose of the extradition hearing is simply to determine whether there exists probable cause that the fugitive committed the offense charged," "discovery in an international extradition hearing is limited") (citations omitted); Matter of Extradition of Aguasvivas, No. 17-MJ-4218-DHH, 2018 WL 3614137, at *8-9 (D. Mass. July 27, 2018) (denying motion to compel discovery beyond the scope of determining whether probable cause existed); Gill v. Imundi, 747 F. Supp. 1028, 1040 (S.D.N.Y. 1990) (extradition magistrate "acted within his discretion in declining to [compel discovery] at risk of converting the extradition hearing into a dress rehearsal trial.") (citation omitted). The Meng decision thus provides an intriguing look into how discovery requests are handled in extradition proceedings north of the border, where individuals facing extradition to the United States may be afforded broader discovery rights than those available here.

Vera M. Kachnowski is of counsel and Jolène LaVigne-Albert is an associate at Schlam Stone & Dolan, where they specialize in white-collar defense and complex civil litigation.