The eyes of the world will be on Vancouver this week as Huawei executive Meng Wanzhou takes a seat in a B.C. courtroom for the first phase of her extradition hearing.
The 47-year-old chief financial officer has been living under house arrest since December 2018, when she was released on $10 million bail pending the conclusion of proceedings to determine if she should be sent to the United States to face fraud charges related to allegations that she violated U.S. economic sanctions against Iran.
In a five-day hearing starting Monday, a judge will hear arguments on so-called double criminality.
CBC brings you up to date on the arguments for and against as well as the background of the case.
What is the purpose of this hearing?
A B.C. Supreme Court judge has to decide if the offence American prosecutors have accused Meng of committing would be prosecutable if the alleged conduct had occurred in Canada.
This is a principle known as “double criminality,” and it is at the core of the Extradition Act.
The Act says the conduct doesn’t have to be “named, defined or characterized” the same way on both sides of the border, but it would have to be punishable by jail time in Canada.
For Meng to be extradited, the Crown must prove double criminality.
What is Meng Wanzhou accused of?
The U.S. Department of Justice has charged Meng with bank fraud, wire fraud, conspiracy to commit bank fraud and conspiracy to commit wire fraud.
The allegations arise from a series of Reuters articles in 2012 and 2013 that claimed Huawei had misrepresented its relationship with Skycom, a firm accused of offering to sell U.S. computer equipment to an Iranian telecommunications company in violation of U.S. economic sanctions.
The articles alleged that Skycom — which Huawei described as a local partner in Iran — was in fact controlled by the Chinese telecommunication giant.
In response to concerns raised by banking executives, Meng allegedly met with an HSBC executive in a Hong Kong restaurant on Aug. 22, 2013, to give a PowerPoint presentation denying the relationship.
U.S. prosecutors say HSBC and other banks continued their business relationship with Huawei based on Meng’s assurances — putting themselves at risk of violating U.S. economic sanctions and criminal prosecution.
What is Meng’s position on double criminality?
Meng’s lawyers claim her conduct would not be prosecutable if it had occurred in Canada because Canada did not have the same economic sanctions against Iran at the time Meng’s extradition warrant was sworn.
In a written argument filed in advance of this week’s hearing, they frame the issue this way:
“A walks into a bank in Canada. B works for the bank and asks A whether her company is doing business in Iran. A misrepresents to B that her company is not doing business in Iran. The bank then processes financial transactions in Canada for A’s company related to Iran,” the defence lawyers write.
“The fundamental question is whether A has committed the crime of fraud in Canada. The answer is no. Since Canada does not prohibit A’s company doing business in Iran, there is no risk of deprivation to the bank under Canadian law.”
And what’s the opposing argument?
Lawyers for Canada’s attorney general say the alleged offence is fraud — which is a crime in both the U.S. and Canada.
The Crown says the decision the judge has to make gets at the heart of Canadian extradition law, which is “conduct based” as opposed to “offence matching.”
They say the object of the hearing is not to compare specific elements of laws in each country, but to consider the “essence” of the alleged offence.
They say the judge may consider American economic sanctions to provide context — but only as a means to understand why the bank might have faced problems by trusting Meng’s word.
“The fact that Canada may have different sanctions against Iran than the United States should not distract the court,” the Crown claims.
“Deceit and risk of loss are at the heart of the conduct.”
So, what are the odds of either side winning?
It’s tough to say.
There are not a lot of similar cases of people facing extradition because of alleged violation of U.S. economic sanctions.
Vancouver lawyer Gary Botting, who has written a book on extradition between Canada and the U.S., says if B.C. Supreme Court Associate Chief Justice Heather Holmes follows recent precedent, she may side with the Crown.
Botting says in the last decade, with the blessing of the Supreme Court of Canada, courts have moved away from superimposing a complete set of facts into a Canadian setting to determine double criminality.
“[They’ve said] if there is any kind of aspect of the law — like the lowest common denominator of the law — that is criminal, then it becomes criminal in Canada.”
But Botting says because of the unusual nature of the case and its complicated circumstances, the judge might want to look further back for precedent.
“She’ll say, ‘No this isn’t criminal in Canada.’ How can we arrest somebody who’s done something in Hong Kong to a bank registered in England?” he says.
“What jurisdiction does the United States have or would Canada have? That’s the situation.”
And what happens after this hearing?
If double criminality is not met, the extradition proceedings would be over, although the Crown could appeal.
But if the Crown wins, the next significant court dates for Meng will occur in May as part of the lead-up to a hearing in June to address Meng’s allegations that her rights were violated during her arrest at Vancouver International Airport.
If that hearing goes ahead, Meng will claim that Canadian authorities conspired with American authorities to mount a covert criminal operation against her at the time of her detention and arrest.
She will also seek to have the extradition proceedings tossed out in relation to her claim she is being used as a pawn by U.S. President Donald Trump, who said he would intervene in Meng’s case if doing so would achieve a better trade deal with China.