VANCOUVER — A lawyer for Huawei executive Meng Wanzhou says the case before a British Columbia Supreme Court judge is "unprecedented" in that the extradition request from the United States violates international law.
Gib van Ert told Associate Chief Justice Heather Holmes on Tuesday that Canadian courts have stayed extradition proceedings because of international law breaches in the past, but in those cases the conduct around the request was unlawful.
The case against Meng is unique because the request itself is unlawful, as American authorities are seeking the Chinese national on fraud charges that have no connection to the United States, he said.
"We cannot find any such case. We don't believe that any requesting state has ever made such a request to this country," van Ert told the judge. "You find yourself in an unusual and even unprecedented situation."
Meng has denied allegations that she lied to HSBC in 2013 about Huawei's relationship with a subsidiary doing business in Iran, putting the bank at risk of violating American sanctions.
Her lawyer argued the allegations have nothing to do with the United States. Meng is a Chinese national, HSBC is an English-Chinese bank and the meeting between them happened in Hong Kong.
Meng would expect the laws of Hong Kong to apply to her in Hong Kong, van Ert said.
Payments between the subsidiary and HSBC were made in American dollars and cleared through U.S. banks, but van Ert said this connection is "incidental" and not genuine or substantial.
He said more than US$4.5 trillion is cleared through the American financial system every day and the transactions in question were just over $2 million over a 13-month period.
The heart of international law is that all states are equal and have sovereign legal authority, he said, and countries cannot extend their criminal law into other nations without a significant connection.
For example, if Meng was American, the U.S. request to extradite her would be appropriate, he said.
There are also some exceptions, such as when a crime in a foreign country poses a threat to another's national security or when it is a war crime or genocide, but none apply in this case, he added.
Meng was arrested while passing through Vancouver's airport in December 2018 and her lawyers are arguing that the extradition case should be tossed because of an abuse of process.
The alleged breach of international law is the last of four branches of arguments the lawyers are making at the hearing. The breach is both an abuse of the Canadian courts and unprecedented, van Ert said.
"How do you respond to that? That's what makes this case so difficult — so difficult in some ways, and so easy in others, I say," he told the judge.
Holmes questioned whether it could be known if the case is truly unprecedented, as the federal government is responsible for issuing an authority to proceed on extradition requests before the cases reach a court hearing.
The Justice Department issued an authority to proceed for the Meng case in March 2019.
The lawyer acknowledged that it isn't known whether "outrageous" extradition requests have been made in the past and rejected by the government.
However, van Ert said the fact that the government issued the authority to proceed doesn't mean the request is lawful. It's the court's job to decide on that issue, he said.
He also assured Holmes that the B.C. court has the authority to act upon international law breaches even though they are not part of the court's usual day-to-day business.
The Constitution does not have provisions that address international law, unlike other countries such as Germany, and instead it is the common law that deals with these principles, he said.
The court is a branch of the Canadian state for the purposes of international law, van Ert said.
"If this court renders a decision that condones the U.S. request, confirms the U.S. request, that is a decision by Canada condoning and confirming the request," he said.
"And we say that would be to put Canada in breach of its own obligations as well as condoning the U.S. breach."
The case has severely strained Canada-China relations. Beijing detained two Canadians, Michael Kovrig and Michael Spavor, shortly after Meng's arrest and their one-day trials were recently held behind closed doors, though no verdicts were released.
Meng is on bail and living with her husband and children in one of her multimillion-dollar homes in Vancouver. The final phase of the B.C. Supreme Court process, an extradition hearing, is scheduled for May.
This report by The Canadian Press was first published March 30, 2021.
Laura Dhillon Kane, The Canadian Press
Note to readers: This is a corrected story. A previous version incorrectly said Justice Minister David Lametti issued the authority to proceed in March 2019. In fact, the Justice Department issued the authority to proceed.