The B.C. Supreme Court ruled on May 27, 2020 that the charges Meng faces in America could also be a crime in Canada and the case should proceed. (Photo by THE CANADIAN PRESS)

Legal experts weigh in on Meng Wanzhou decision from B.C. Supreme Court

The court will now hear arguments about whether Meng’s arrest was unlawful

VANCOUVER — A loss in court for Huawei CFO Meng Wanzhou has prompted another round of legal arguments in her attempt to avoid extradition to the United States on fraud charges.

Associate Chief Justice Heather Holmes of the B.C. Supreme Court ruled Wednesday the charges Meng faces in America could also be a crime in Canada and the case should proceed, a decision that one legal expert says puts the rule of law above political pressures.

“If you turn a blind eye in the favour of political outcomes, you’re sacrificing the rule of law and then you do become subject to China’s allegation or criticism that this is all political,” said Robert Adamson, who teaches business law at the Beedie School of Business at Simon Fraser University.

Meng’s arrest by the RCMP at the Vancouver airport in December 2018 placed Canada in the middle of rising tensions between the U.S. and China, and two Canadians, ex-diplomat Michael Kovrig and entrepreneur Michael Spavor, were detained in China nine days later. They remain in custody.

Meng is accused of misrepresenting Huawei’s relationship with Skycom Tech Co. and making false statements to HSBC, putting the bank at risk of violating U.S. sanctions against Iran.

Her lawyers argued that Meng’s conduct could not constitute fraud in Canada because it related to American sanctions that Canada doesn’t apply, while the Attorney General of Canada told the court the fraud allegations could be argued without reference to the U.S. sanctions.

Justice Holmes found the U.S. sanctions are relevant to the issue of double criminality, but it wasn’t enough to dismiss the case.

“The essence of the alleged wrongful conduct in this case is the making of intentionally false statements in the banker-client relationship that put HSBC at risk. The U.S. sanctions are part of the state of affairs necessary to explain how HSBC was at risk, but they are not themselves an intrinsic part of the conduct,” she wrote in her decision.

“For this reason, I cannot agree with Ms. Meng that to refer to U.S. sanctions in order to understand the risk to HSBC is to allow the essence of the conduct to be defined by foreign law. Canada’s laws determine whether the alleged conduct, in its essence, amounts to fraud.”

A broad definition of double criminality helps avoid unforeseen consequences, said Adamson, a member of the Canadian Bar Association.

He said a narrower definition of double criminality could stop extradition hearings at preliminary junctures and limit Canada’s ability to extradite as well as ask for someone to be extradited here.

Vancouver extradition lawyer Gary Botting took a different view, saying Justice Holmes’s ruling creates a “hybrid” way of looking at double criminality by importing some, but not all of the context of the U.S. sanctions.

The Supreme Court of Canada has made plain that they prefer to say, “fraud is fraud, theft is theft,” said Botting, adding that’s “more or less what Holmes has followed.”

However, by importing some, but not all of the context of the sanctions, Botting said Justice Holmes “made a mistake of the law.”

“It can’t be both ways. In other words, this is an appealable judgement, in my view.”

In the next phase of the proceedings, the court will hear arguments about whether Meng’s arrest was unlawful.

Her lawyers have alleged the Canada Border Services Agency, the RCMP and the Federal Bureau of Investigation conducted a “covert criminal investigation” at the airport and violated Meng’s charter rights.

Border officers seized Meng’s cellphones, tablet and other devices and wrote down her passcodes, which were then handed to the RCMP.

The Crown has told the court that when the border agency learned of its mistake it told the RCMP that the codes couldn’t be used or shared because they were obtained during the agency’s examination.

It said officials followed the law and there’s no proof that Meng was illegally arrested.

Botting said he believes Meng’s rights were violated.

“Whether that amounts to a stay of proceedings or not is entirely, again, up to the judge.”

Adamson disagreed, saying he hasn’t seen “any strong evidence” of her rights being violated, and from what he understands, that argument from her defence team isn’t as strong as the double-criminality argument was.

“That is, if Ms. Meng and her defence team had a better change of this case coming to a conclusion it was more likely to be on the double-criminality issue and not on this abuse of process,” he said.

Canada’s Justice Minister David Lametti will still have the final say on whether Meng should be extradited to the U.S.

This report by The Canadian Press was first published May 28, 2020.

Meng extradition

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Alberta has 3,651 active cases of COVID-19. (File photo)
432 new COVID cases sets another record Friday

Central zone holds steady at 126 active cases

"We are looking seriously at the spread and determining what our next steps should be," says Alberta’s chief medical officer of health, Dr. Deena Hinshaw, as the daily number of COVID-19 cases continues to climb.
427 new COVID cases is highest in Alberta ever

Central zone has 126 active cases of COVID-19

100 Women Who Care make a donation to Sylvan Lake Food Bank and Bethany Care Centre. Photo By Megan Roth/Sylvan Lake News
100 Women Who Care donate to four Sylvan Lake groups

The Food Bank, Bethany Sylvan Lake, Community Partners and the Library all received a donation

RCMP. (Black Press File Photo)
Calgary man dies in two-vehicle collision near Sylvan Lake

A semi truck collided with a SUV just east of Hwy. 781 on Hwy 11.

Shaelynn Decock and her dog Taco, who has been missing since Aug. 26. Photo Submitted
Sylvan Lake woman looking for closure for her stolen dog

Shaelynn Decock says it has been two months since she last saw her dog Taco

B.C. Liberal leader Andrew Wilkinson, B.C. NDP leader John Horgan and B.C. Greens leader Sonia Furstenau. (Black Press Media)
VIDEO: One day until B.C. voters go to the polls in snap election defined by pandemic

NDP Leader John Horgan’s decision to call an election comes more than a year ahead of schedule and during a pandemic

Comedic actor Seth Rogen, right, and business partner Evan Goldberg pose in this undated handout photo. When actor Seth Rogen was growing up and smoking cannabis in Vancouver, he recalls there was a constant cloud of shame around the substance that still lingers. Rogen is determined to change that. (Maarten de Boer ohoto)
Seth Rogen talks about fighting cannabis stigma, why pot should be as accepted as beer

‘I smoke weed all day and every day and have for 20 years’

Leader of the Opposition Erin O’Toole rises during Question Period in the House of Commons Thursday October 22, 2020 in Ottawa. THE CANADIAN PRESS/Adrian Wyld
O’Toole tells Alberta UCP AGM Liberals were ‘late and confused’ on COVID response

He says Alberta Premier Jason Kenney has taken charge and not waited to make things happen

Alberta Premier Jason Kenney arrives for an announcement at a news conference in Calgary, Alta., Tuesday, Sept. 15, 2020. THE CANADIAN PRESS/Todd Korol
Inquiry into oil and gas foes to deliver report next year: Kenney

A lawsuit filed by environmental law firm Ecojustice argues the inquiry is politically motivated

The Canadian border is pictured at the Peace Arch Canada/USA border crossing in Surrey, B.C. Friday, March 20, 2020. More than 4.6 million people have arrived in Canada since the border closed last March and fewer than one-quarter of them were ordered to quarantine while the rest were deemed “essential” and exempted from quarantining. THE CANADIAN PRESS/Jonathan Hayward
Majority of international travellers since March deemed ‘essential’, avoid quarantine

As of Oct. 20, 3.5 million travellers had been deemed essential, and another 1.1 million were considered non-essential

This photo provided by Air Force Reserve shows a sky view of Hurricane Epsilon taken by Air Force Reserve hurricane hunter team over the Atlantic Ocean taken Wednesday, Oct. 21, 2020.   Epsilon’s maximum sustained winds have dropped slightly as it prepares to sideswipe Bermuda on a path over the Atlantic Ocean.  The National Hurricane Center says it should come close enough Thursday, Oct. 22, evening to merit a tropical storm warning for the island.  (Air Force Reserve via AP)
Hurricane Epsilon expected to remain offshore but will push waves at Atlantic Canada

Epsilon is not expected to have any real impact on land

A voter places her absentee ballot in the ballot box, Wednesday, Oct. 7, 2020, at Merrill Auditorium in Portland, Maine. THE CANADIAN PRESS/AP/Robert F. Bukaty
American voters living in Canada increasingly being counted in presidential race

The largest number of Canadian-based American voters cast their ballots in New York and California

A composite image of three photographs shows BC NDP Leader John Horgan, left, in Coquitlam, B.C., on Sept. 25, 2020; BC Green Party Leader Sonia Furstenau, centre, in Victoria on Sept. 24, 2020; and BC Liberal Party Leader Andrew Wilkinson Pitt Meadows, B.C., on Sept. 24, 2020. THE CANADIAN PRESS/Darryl Dyck, Chad Hipolito
British Columbia votes in snap election called during COVID-19 pandemic

NDP Leader John Horgan called the snap election one year before the fixed voting date

Nunavut's provincial flag flies on a flag pole in Ottawa, on Tuesday June 30, 2020. The annual report from Nunavut's representative for children and youth says "complacency and a lack of accountability" in the territory's public service means basic information about young people needing services isn’t tracked. THE CANADIAN PRESS/Adrian Wyld
Nunavut’s young people ‘should be expecting more’ from government services: advocate

‘The majority of information we requested is not tracked or was not provided by departments’

Most Read