Lawyers representing the Canadian attorney general say the fraud case against Huawei executive Meng Wanzhou is not complicated and a judge should commit the woman for extradition to the United States.
The Crown delivered arguments Wednesday at a British Columbia Supreme Court hearing focusing on the legal test of double criminality, or whether the allegations against Meng are also a crime in Canada.
The United States has charged her with fraud over accusations she lied to an HSBC executive about Huawei’s relationship with Iran-based subsidiary Skycom, putting the bank at risk of violating American sanctions.
The defence has argued that the alleged conduct doesn’t amount to fraud in Canada because the country has no such sanctions and the bank wouldn’t have faced any financial risk.
However, Crown counsel Robert Frater said the judge does not necessarily need to consider American sanctions law to understand why Meng’s alleged misrepresentations put HSBC in peril.
“Ours is not a complex theory of this case. Lying to a bank in order to get banking services, (creating) a risk of economic prejudice, is fraud,” Frater said.
“Fraud, not sanctions violations, is at the heart of this case.”
Frater said HSBC contacted Huawei in 2013 because it was concerned about news reports that Skycom was doing business in Iran, and Meng offered false assurances that Huawei no longer held a shareholding interest in the company.
HSBC faced significant reputational risk for processing Iran-related transactions because it was already operating under a deferred prosecution agreement for doing business in Libya, Sudan and Myanmar, he said.
The defence has noted that Canada withdrew sanctions against Iran in 2016, prior to Meng’s arrest in 2018, and that the federal government has since encouraged business with the country.
But Frater said what the Canadian government wants is of no interest to a bank.
“The bank has to ask: Is doing this business going to cause us to lose other business?” he said. “The bank is entitled to honesty in being able to assess whether it is going to be at risk.”
At the same time, Frater argued that the case law does allow the judge to apply American sanctions law in a limited way as part of the relevant context, in order to understand the risk faced by HSBC.
The defence’s position that Justice Heather Holmes must completely ignore the foreign context is an “absolutist” one, and previous cases instead indicate she can use common sense, he said.
“In law, facts are only comprehensible if they’re considered in relation to the legal context they arise,” he said.
Meng’s lawyers have argued that the principle of double criminality is meant to uphold Canadian independence and values, ensuring that no one is surrendered for conduct that is not criminal locally.
But Frater countered that the judge’s job is not to stand up for Canadian sovereignty — such matters are a concern for the federal government.
Justice Minister David Lametti will make the final decision on whether to surrender Meng to the United States.
“Your job is to determine whether there is evidence before you capable of amounting to some evidence of … fraud,” Frater told the judge.
Meng denies the allegations and is free on bail, living at one of her two homes in Vancouver. She has been listening to the hearing with the help of a translator.
The case has fractured Canada-China relations. Following Meng’s arrest at Vancouver’s airport in December 2018, China detained two Canadian citizens and restricted some imports, actions widely seen as retaliation.
The defence will reply to the Crown’s double-criminality arguments on Thursday.
If the judge finds the legal test has been met, the hearing will proceed to a second phase in June that will consider defence allegations that Meng’s rights were violated during her arrest at the airport.
But if the judge finds double criminality has not been proven, Meng will be free to leave Canada, although she’ll still have to stay away from the United States to avoid the charges.
Laura Kane, The Canadian Press