Meng Wanzhou’s defence team opened her extradition hearing before a packed public gallery Monday, arguing she should not be sent to the United States because the allegations she faces would not be a crime in Canada.
The U.S. wishes to prosecute the Huawei Technologies Co. Ltd. executive for an alleged evasion of economic sanctions against Iran, her lawyers said in British Columbia Supreme Court, while falsely portraying the case as one of alleged fraud.
The difference between the two types of charges is critical. Fraud is an offence in both the U.S. and Canada. But Canada has not had economic sanctions against Iran since 2016, when it signed an international agreement to limit its nuclear program. For an extradition to occur, any criminal acts must be deemed an offence if committed in either country.
The concept, known as “double criminality,” is not just a technical matter. Ensuring that an offence would be a crime in the country from which extradition is requested is how that country insists its own values are respected in the reciprocal process of extradition. For that reason, double criminality is at the core of extradition law in much of the world.
The case against Ms. Meng has caused a rupture in Canada-China relations, with China arresting two Canadians, Michael Spavor and Michael Kovrig, shortly after Ms. Meng’s arrest on Dec. 1, 2018, and having detained them ever since. China has also suspended imports on canola and other farm products. Ms. Meng, meanwhile, has been free on bail and living in a mansion. If extradited and ultimately convicted in the U.S., she faces the possibility of years in jail.
“Fraud is a facade,” Richard Peck, lead counsel for Ms. Meng, told Associate Chief Justice Heather Holmes of the B.C. Supreme Court, as the public and media watched from behind bulletproof glass. “Would we be here in the absence of U.S. sanctions law? The response is no.”
He added: “It is a fiction to contend that the United States has any general interest in policing private dealings between a foreign bank and a foreign citizen on the other side of the world. However, it is the case that the United States has a global interest in enforcing its sanctions policy. Sanctions drive this case.”
The proceedings were held in the high-security Courtroom 20, which was converted from five smaller courtrooms for the Air India trial almost 20 years ago. The courtroom was standing-room only, for about 150 members of the media and the public, with overflow crowds watching proceedings on television monitors.
As with earlier proceedings, Ms. Meng was permitted to move from the prisoner’s box to a seat at a table with her interpreter for better access to documents. Her husband, Liu Xiaozong, watched the proceedings from the gallery.
The federal Attorney-General’s department is presenting the case for Ms. Meng’s extradition on behalf of the U.S. Department of Justice. It has not yet had its turn before Associate Chief Justice Holmes. In its written arguments, filed this month, it said Ms. Meng misrepresented Huawei’s conduct in Iran to U.S.-based banks, and sanctions simply provide the context for what it considers her fraudulent misrepresentations.
The key in the double-criminality stage of the extradition hearing is the actual conduct at stake, not the name of the offence. If the courts accept Ms. Meng’s argument that the charge against her is truly about evasion of sanctions, the extradition attempt would fail. If the courts do not accept her argument, the Canadian government will present evidence on behalf of the U.S. Justice Department, scheduled for next fall, and Ms. Meng will have an opportunity to assert her innocence.
Justice Minister David Lametti has already concluded that the offence she is accused of does exist in Canada. But the extradition process is one in which law and politics are interwoven. The Justice Minister issued an Authority to Proceed last February and now the case is in a judicial phase. Associate Chief Justice Holmes will be asked next fall to decide if there is enough evidence to send her for trial. The standard is the same as that in a preliminary inquiry in Canada: Is there enough evidence that a jury, reasonably instructed by a judge, can convict?
If the courts rule that Ms. Meng can be extradited, the case is returned to Mr. Lametti, who as Justice Minister has wide discretion to decline to send her on the U.S. to be prosecuted. With appeals possible, of court rulings and of Mr. Lametti’s ultimate decision, the case could last years.
In a second leg of Ms. Meng’s argument, lawyer Eric Gottardi, another member of her team, argued Monday that a misrepresentation is not enough to create the offence of fraud. The misrepresentation has to have caused harm. Under Canadian law, he said, banks would not have suffered harm; they could not be punished for violating sanctions because if they were lied to, they would be unwitting victims.
Associate Chief Justice Holmes appeared to stumble on that argument, asking repeatedly for clarification from Mr. Gottardi.
Outside the courthouse, a small group called for Ms. Meng’s release, while other demonstrators, also small in number, held signs drawing attention to the Uyghurs, a Muslim minority, being detained in China’s Xinjiang region.
“Meng Wanzhou is lucky," Parhat Kasim said. "This is Canada and she has a lawyer. She has a fair trial.” Mr. Kasim said his sister is among the Uyghurs being held in a Chinese indoctrination camp.
Zhu Shengwu, a former lawyer in China, protested outside of the courthouse, holding a sign that said, “Release Kovrig and Spavor.”
Ms. Meng smiled, wished the crowd good morning and thanked someone who wished her a happy Lunar New Year in Mandarin.
The Chinese government has attacked the charges against Ms. Meng, with Foreign Ministry spokesman Geng Shuang arguing again Monday the case against her amounts to a “serious political incident.” Mr. Geng expressed no confidence in the Canadian legal system, instead reiterating demands for Canadian authorities to “release Ms. Meng without further delay and ensure her safe return to China.”
There have been signs, however, that Beijing is not keen to further escalate the conflict with Ottawa. China has resumed imports of Canadian pork and beef, and Chinese media have devoted little coverage to the extradition proceeding.
The nationalist Global Times published one article summarizing foreign media coverage of her hearing Monday and another in which the founder of a Chinese technology leader called the case against her political, and one that “needs to be solved through political measures.”
With a report from Nathan VanderKlippe in Beijing
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