FILE PHOTO: Huawei Technologies Chief Financial Officer Meng Wanzhou returns to British Columbia supreme court after a lunch break during a hearing in Vancouver on September 30, 2019.Lindsey Wasson/Reuters
Lawyers for Huawei executive Meng Wanzhou say the United States is “dressing up” its complaint that she violated sanctions as a case of fraud and have asked the B.C. Supreme Court to decline her extradition.
Meng is free on bail and living in one of her homes in Vancouver while awaiting an extradition hearing following her arrest last December at the request of the United States.
She is accused of lying about Huawei’s relationship with its Iran-based affiliate Skycom to one of its bankers, HSBC, but she denies any wrongdoing and the allegations have not been tested in court.
In court documents released Thursday, Meng’s legal team says the alleged misrepresentation does not amount to fraud and the transactions processed by HSBC were not illegal in Canada.
The defence says the case is really about the United States seeking to enforce its Iranian sanctions laws against Meng for conduct that took place outside both the United States and Canada.
“In reality, this case is about the United States seeking to enforce its Iranian sanctions laws against the applicant, who is neither a U.S. citizen nor a Canadian citizen, for conduct that took place outside of both countries,” the defence documents say.
“The requesting state seeks to dress up its sanctions breaking complaint as a case of fraud.”
The attorney general of Canada, which acts on behalf of the United States in the case, has not yet filed its written arguments but has previously called the focus on sanctions a “complete red herring.”
“This case is about an alleged misrepresentation made by Ms. Meng to a bank that they relied upon, and in so relying, put their economic interests at risk,” Crown prosecutor John Gibbs-Carsley said in May.
The U.S. Department of Justice has laid 13 criminal charges, including conspiracy, fraud and obstruction, against Huawei and Meng, who is the daughter of company founder Ren Zhengfei. The indictment accuses Huawei and Meng of misrepresenting their ownership of Skycom, a Hong Kong-based subsidiary, between 2007 and 2017 in an effort to circumvent U.S. sanctions against Iran.
Meng is alleged to have said Huawei and Skycom were separate companies in a PowerPoint presentation during a meeting with an executive of a financial institution, misleading the executive and putting the institution at risk of financial harm and criminal liability.
Huawei has said the PowerPoint was not misleading, the bank had knowledge of the nature of Skycom’s business in Iran and the bank understood the relationship between Huawei and Skycom.
The defence team’s 40-page memorandum of fact and law released Thursday outlines arguments it will make on the principle of “double criminality” at a hearing in January.
Double criminality ensures Canada does not extradite a person to face punishment in another country for conduct that Canada does not deem criminal.
The alleged misrepresentation to the bank does not amount to fraud in Canada, which requires a prohibited act and a “risk of deprivation” caused by that act. And even if the misrepresentation is a prohibited act, “under Canadian law it caused no risk of deprivation in Canada,” the defence argues.
“The USA had unique sanctions laws against Iran that proscribed HSBC’s transactions, but Canada did not,” it says.
Had the alleged events and transactions taken place in Canada, HSBC would not face any potential liability under Canadian sanctions laws and, therefore, HSBC’s financial interests could not have been at risk, it says.
“In other words, the essential element of deprivation would not be met.”