Judge grills Meng Wanzhou's lawyers on double-criminality issues

January 21, 2020 admin crime and law, local news, trials

Credit to Author: Keith Fraser| Date: Tue, 21 Jan 2020 23:53:27 +0000

The judge in Huawei executive Meng Wanzhou’s extradition hearing continued to press her lawyers Tuesday on questions surrounding the issue of double criminality.

In the first stage of the hearing, the lawyers for the Huawei executive and the federal Crown, acting on behalf of U.S. authorities seeking Meng’s extradition, are addressing the question of whether the crime that Meng is alleged to have committed in the U.S. is also a crime in Canada. The double-criminality test must be met before an individual in Canada can be extradited to another country.

Meng, who was arrested in Vancouver in December 2018, is being sought for extradition over allegations she committed fraud when, during a meeting at a Hong Kong restaurant in 2013, she told the HSBC bank that her company had no links with a subsidiary of the Chinese tech giant that was allegedly violating U.S trade sanctions in Iran. The Huawei CFO and daughter of the company founder is alleged to have lied in order to protect her firm’s multimillion-dollar financial dealings with the bank.

Her lawyers are claiming that there was no fraudulent conduct because there are no equivalent Canadian sanctions against Iran.

On Monday, B.C. Supreme Court Associate Chief Justice Heather Holmes put a hypothetical question to defence lawyer Eric Gottardi, which she said would help her understand the nature of the fraud being alleged.

Huawei Chief Financial Officer Meng Wanzhou leaves her home to attend her extradition hearing at B.C. Supreme Court in Vancouver, British Columbia, Canada January 21, 2020. REUTERS/Jennifer Gauthier By Jennifer Gauthier /REUTERS

Huawei chief financial officer Meng Wanzhou leaves her Vancouver home for an extradition hearing in British Columbia Supreme Court, on January 21, 2020 in Vancouver, British Colombia. – The Chinese telecommunications executive whose arrest in Vancouver badly strained Canada-China relations went to court on Monday to fight extradition to the United States, with her lawyers calling the accusations against her "fiction." Meng Wanzhou, the chief financial officer of tech giant Huawei and eldest daughter of its founder Ren Zhengfei, is wanted by US authorities for alleged fraud. (Photo by Don MacKinnon / AFP) DON MACKINNON /AFP

Huawei chief financial officer Meng Wanzhou leaves her Vancouver home with her security detail for an extradition hearing in British Columbia Supreme Court, on January 21, 2020 in Vancouver, British Colombia. – The Chinese telecommunications executive whose arrest in Vancouver badly strained Canada-China relations went to court on Monday to fight extradition to the United States, with her lawyers calling the accusations against her "fiction." Meng Wanzhou, the chief financial officer of tech giant Huawei and eldest daughter of its founder Ren Zhengfei, is wanted by US authorities for alleged fraud. (Photo by Don MacKinnon / AFP) DON MACKINNON /AFP

Huawei chief financial officer Meng Wanzhou, wearing an ankle monitor, leaves her Vancouver home for an extradition hearing in British Columbia Supreme Court, on January 21, 2020 in Vancouver, British Colombia. – The Chinese telecommunications executive whose arrest in Vancouver badly strained Canada-China relations went to court on Monday to fight extradition to the United States, with her lawyers calling the accusations against her "fiction." Meng Wanzhou, the chief financial officer of tech giant Huawei and eldest daughter of its founder Ren Zhengfei, is wanted by US authorities for alleged fraud. (Photo by Don MacKinnon / AFP) DON MACKINNON /AFP

Steven Song (L), Shengwu Zhu and Zhiyuan Wang (R) hold signs outside of B.C. Supreme Court during Huawei Chief Financial Officer Meng Wanzhou's extradition hearing in Vancouver, British Columbia, Canada January 21, 2020. REUTERS/Jennifer Gauthier By Jennifer Gauthier /REUTERS

Steven Song and a small group of protesters hold signs and flags outside of B.C. Supreme Court during Huawei Chief Financial Officer Meng Wanzhou's extradition hearing in Vancouver, British Columbia, Canada January 21, 2020. REUTERS/Jennifer Gauthier By Jennifer Gauthier /REUTERS

Huawei Chief Financial Officer Meng Wanzhou leaves B.C. Supreme Court for the day during her extradition hearing at in Vancouver, British Columbia, Canada January 21, 2020. REUTERS/Jennifer Gauthier By Jennifer Gauthier /REUTERS

Huawei chief financial officer Meng Wanzhou leaves British Columbia Supreme Court with her security detail after the second day of her extradition hearing on January 21, 2020 in Vancouver, British Colombia. – The Chinese telecommunications executive whose arrest in Vancouver badly strained Canada-China relations went to court on Monday to fight extradition to the United States, with her lawyers calling the accusations against her "fiction." Meng Wanzhou, the chief financial officer of tech giant Huawei and eldest daughter of its founder Ren Zhengfei, is wanted by US authorities for alleged fraud. (Photo by Don MacKinnon / AFP) DON MACKINNON /AFP

She asked Gottardi whether, if all of the facts in Meng’s case, except the fact that the meeting was in Hong Kong, were considered as a possible domestic Canadian prosecution, if that would be a viable prosecution.

Gottardi said he would have to think about the answer and on Tuesday presented the judge with a document that responded to the hypothetical scenario. The document, entitled an “aide memoire,” said that the answer to the judge’s hypothetical question is no.

“The bank would face no risk of legal liability in Canada under Canadian law as there are no legal consequences in Canada for engaging in dollar transactions related to Iran and the bank is an innocent victim,” said the document, part of which was read out in court by Gottardi. “Hence, no actual loss or risk of economic loss could arise domestically. There would be no foreign source of risk based on U.S. law because the bank is an innocent victim on the facts set out in the (prosecution’s record of the case and supplemental record of the case).”

As Gottardi was reading out the document, the judge pointed out that the defence lawyer had introduced a different issue into the analysis, namely whether there is in the record of the case and the supplemental record of the case evidence of risk-of-loss. Gottardi responded by saying that the hypothetical the judge posed only “transposes” half of the acts alleged in the case.

Steven Song and a small group of protesters hold signs and flags outside of B.C. Supreme Court during Huawei Chief Financial Officer Meng Wanzhou’s extradition hearing in Vancouver, British Columbia, Canada January 21, 2020. By Jennifer Gauthier / REUTERS

“That’s why I’m trying to frame it as a domestic prosecution, not an extradition analysis. So the hypothetical leaves behind the extradition process,” said the judge.

Gottardi continued to insist that under the judge’s hypothetical scenario, no fraud was made out due to the fact that there are no sanctions against Iran in Canada.

“So it’s your position that for fraud to be capable of prosecution in Canada, all of the elements of fraud need to be within Canadian jurisdiction?” said the judge. “Is that your position?”

“Yeah,” said Gottardi. “All of the conduct. All of the acts or commissions. You have to be in Canada and subject to Canadian law.”

Asked by the judge whether he could provide legal cases supporting his position, Gottardi said he could not.

Huawei Chief Financial Officer Meng Wanzhou leaves her home to attend her extradition hearing at B.C. Supreme Court in Vancouver, British Columbia, Canada January 21, 2020. JENNIFER GAUTHIER / REUTERS

“I’m not sure I understand where the risk comes from that would render it a viable prosecution in Canada,” said the defence lawyer.

The judge said that what was underlying her questions was whether if in her hypothetical scenario a viable prosecution was available, why it wouldn’t be sufficient as well to make a case for fraud on the domestic side of an extradition analysis in Meng’s case.

Gottardi replied that it was difficult to answer that question.

After Gottardi finished his submissions, Scott Fenton, another lawyer for Meng, emphasized that the essential elements of fraud against Meng could not be made under Canadian law and therefore she should be discharged.

Robert Frater, a lawyer for the federal Crown, asked the judge for permission to begin his submissions Wednesday and court was adjourned.

kfraser@postmedia.com

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