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, youre sacrificing the rule of law and then you do become subject to Chinas 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.
Mengs 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 Huaweis 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 Mengs conduct could not constitute fraud in Canada because it related to American sanctions that Canada doesnt 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 wasnt 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. Canadas 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 Canadas ability to extradite as well as ask for someone to be extradited here.
Vancouver extradition lawyer Gary Botting took a different view, saying Justice Holmess 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 thats “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 cant 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 Mengs arrest was unlawful.
Her lawyers have alleged the Canada Border Services Agency, the RCMP, and the Federal Bureau of InvestigaRead More – Source