Canadian law key to Huawei CFO case

At center of Meng Wanzhou extradition hearing is issue of 'double criminality'

The extradition hearing of Huawei Chief Financial Officer Meng Wanzhou will hinge on the legal issue of double criminality, meaning the US' allegations could be dismissed if they are not considered a crime in Canada, but if they are, she could be extradited to the United States, according to experts.

The formal phase of Meng's extradition hearing started Monday in British Columbia Supreme Court. The fraud charges Meng faces from US prosecutors involve Huawei Technologies Co Ltd allegedly using a subsidiary to sell telecom equipment in Iran despite American sanctions against the Middle Eastern country.

Meng was arrested at Vancouver International Airport on Dec 1, 2018, at the behest of US authorities.

In five days this week, Meng's defense team and lawyers for Canada's attorney general will debate the question of so-called double criminality before Associate Chief Justice Heather Holmes.

Led by veteran lawyer Richard Peck, Meng's lawyers have argued that she should not be extradited because the charges, such as fraud to evade US sanctions on Iran, could not be considered crimes under Canadian law, and that it is not illegal in Canada to do business with Iran, because Canada lifted its sanctions against Iran four years ago.

Yves Tiberghien, a professor of political science at the University of British Columbia, said that in any case, it will be a long time from the proceeding to any extradition, if it at all happens, adding that this week and for the next couple of months, is like a mini trial on the question of dual criminality.

"If the judge finds no dual criminality conditions, it could end the trial. If there is dual criminality found by the judge, then the trial will proceed but will take a long time, two years, maybe," Tiberghien told China Daily.

"After that, there would be an appeal to the Court of Final Appeals, then to the Supreme Court, then a decision of the minister (of justice) and another possible appeal," he said.

Tiberghien said it is not certain that the US wants Meng to be tried in the US, as it would be a strain on already fraught US-China relations.

"Nonetheless, the arrest of Meng took China by surprise and has generated great popular anger in China. Meanwhile, the arrest of two Michaels (businessman Michael Spavor and former Canadian diplomat Michael Kovrig on espionage charges) has generated anger in Canada. Relations are greatly suffering from the overall process," he said.

Meng's arrest has exacerbated ongoing diplomatic tension between Canada and China and drawn worldwide attention to Canada's extradition laws and precedents.

Whether Canada's justice minister, who is part of the Canadian government, should intervene in the Meng case when all legal avenues have been exhausted, Tiberghien referred to Article 23-3 of the Canadian Extradition Act, which allows the minister to intervene.

But he pointed out that the provision in the law is rarely if ever used in Canada, as Canadians "frown upon" political interference with legal processes.

"It would require a good rationale rooted in the rule of law and national interest. In common law countries like Canada, practice does have weight in addition to the law. So the political obstacles to intervening in the process are high," he said.

"Therefore, when President Trump issued that tweet linking the Meng arrest to the trade war, the Canadian government and the public were really astonished and shocked," he said. "It is understandable that Chinese people have paid strong attention to the tweet by the president. This has indeed given a political connotation to the case."

Eddie Goldenberg, a former chief of staff to former prime minister Jean Chrétien and a current partner in the law firm of Bennett Jones LLP, pointed out that "It has been clear from the start that the Trump administration considers the matter to be in the realm of geopolitics."

"There can be no doubt that for Mr Trump the Meng case remains a potential bargaining chip in his trade negotiations with the Chinese," Goldenberg wrote to The Globe and Mail newspaper in Toronto.

Some observers says the future of Sino-Canadian relations is being put to a historic test in the Vancouver courtroom. Both sides are keen to put relations back to where they were before Meng's arrest and subsequent court appearances, with China saying Canada was doing the bidding of the US in the case, while Canada has said it was adhering to the law.

"The impact of Meng's case on the Canada-China relations has been widely commented on, and no doubt a decision against her will cause crippling damage to the already strained relations. It will be a lose-lose scenario," Canadian lawyer Ping Tan told China Daily.

Hours before the extradition hearing on Monday, the Chinese Foreign Ministry once again called on Canadian authorities to immediately free Meng, daughter of Ren Zhengfei, the founder of the Shenzhen-based telecommunications giant that is a leader in 5G wireless technology.

Huawei issued a statement on Monday that said: "We trust in Canada's judiciary system, which will prove Ms Meng's innocence. Huawei stands with Ms Meng in her pursuit of justice and freedom."