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Huawei crackdown

Huawei extradition hearing: Meng's lawyers call for dismissal

Defense team argues that US sanctions fail 'double criminality' test

Huawei Chief Financial Officer Meng Wanzhou leaves court for a lunch break during the first day of her extradition hearing in Vancouver.    © Reuters

VANCOUVER -- Wearing a black dress, stiletto heels and a GPS-monitoring ankle bracelet, Huawei CFO Meng Wanzhou walked into Courtroom 20 at the British Columbia Supreme Court on a rainy Monday morning for the first day of her extradition hearing.

Escorted by security guards, Meng and her translator took their seats behind a wall of bullet-proof glass in the "prisoner box" and waited for opening arguments to begin. Her husband, Liu Xiaozong, sat in the second row of spectators outside the glass wall.

Courtroom 20 was built for high-profile cases -- its first trial was the Air India bombing case, involving the infamous 1985 terrorist attack that left 329 dead. On Monday, the 150-seat auditorium was quickly filled with journalists, members of the public, Huawei staff and representatives from the Chinese embassy.

The U.S. is requesting Meng's extradition from Canada to face charges of bank and wire fraud and breaking sanctions on Iran. The case is politically sensitive, not least because Meng is the daughter of Huawei founder Ren Zhengfei.

The hearing kicked off with Richard Peck, one of her defense lawyers, arguing that U.S. sanctions against Iran are at the core of this case and any attempt to claim otherwise is a "facade."

"Would we be here in the absence of U.S. sanctions law?" Peck asked the room. "In our respectful submission, the response is 'No.'"

The hearing is expected to last five days. The court will focus on the "double criminality" test -- for Meng to be extradited, the allegations against her must be considered crimes in both the U.S. and Canada. If the judge rules that the double criminality requirement is not met, Meng will be released.

The Crown Counsel -- the attorneys for the Canadian government -- argued in court documents that the double criminality question should apply to the allegations of bank and wire fraud, which are crimes in both countries.

Meng's lawyers are trying to make the case to Associate Chief Justice Heather Holmes that the extradition case is about sanctions. Because the sanctions in question are American, not Canadian, her lawyers argue that the double criminality requirement is not met.

Experts, however, say Meng is fighting an uphill battle because it is very rare for Canadian judges to drop an extradition request.

"It is very hard in the Canadian case for a judge not to grant extradition, it's in the 90-plus percent," Paul Evans, public policy and global affairs professor at the University of British Columbia, told the Nikkei Asian Review. "Whatever public attitudes are, whatever the arguments are by experts on the outside, it is going to be very tough to try and get the judge to come to another decision."

It is also important to note that Meng is not on trial in Canada, Evans said.

"This is simply to see if there is sufficient ground to extradite her to the United States where her big trial would be held," he explained. "So the standards of evidence are much lower."

Another lawyer for Meng, Eric Gottardi, argued that many transactions related to Meng's allegations happened before 2013. He said that Canada imposed sanctions against Iran in 2013 and lifted them in 2016 with the signing of the nuclear deal.

Gottardi also argued that the timing of the extradition request raises questions, because under Canadian law, the conduct in question must be considered a crime at the time the country authorizes extradition proceedings to proceed. That authorization came in February 2019 in Meng's case.

"If the law of the requested state would not find the conduct criminal at the time of the request, it legitimately refuses extradition," Gottardi told the court.

Justice Holmes went back and forth with Gottardi, probing the lawyer's references and arguments, and questioning whether Meng's alleged actions would be considered criminal if this were a domestic case. Gottardi initially appeared to have difficulty answering these questions.

The Crown Counsel is expected to make its case on day two or day three.

The case has stirred public emotion in Canada, where debate is heating up over whether to allow Huawei to participate in the country's 5G networks.

While lawyers inside the courtroom were arguing their case, three different groups of protesters had gathered outside in the rain: anti-Huawei demonstrators, Uyghur Muslim rights advocates and students calling for Meng's release in exchange for the release of Michael Kovrig and Michael Spavor, the two Canadians currently detained in China on suspicion of "endangering national security."

A group of protesters call for Huawei to be kicked out of Canada. (Photo by Marrian Zhou)

Some of the protestors accused Huawei of spying for the Chinese Communist Party, while others said Meng is lucky to get a fair trial when 3 million Uyghurs are being detained without trial.

The student protestors reportedly declined any interviews or questions about their affiliation, according to local journalists on the scene.

Evans, the public policy professor, said that even if Meng's case and the detention of the two Michaels are not related, people are connecting the two and becoming increasingly angry with Huawei and China.

"It's really an interesting time because we have three Huawei issues in the public mind that are all happening at the same time," said Evans, citing Meng's extradition case, the debate over Huawei's participation in developing 5G networks and the detention of the two Canadians in China.

Advocates protesting China's treatment of the Uighur Muslim minority gather outside the Vancouver courtroom where Meng's extradition hearing is taking place on Jan. 20. (Photo by Marrian Zhou)

"Over the last year, the Canadian public's anger has been getting greater and greater over this," Evans continued. "I don't think Huawei was responsible for the arrest of the two Michaels, but you've dealt with that as the background... [People suggest] it's time to basically do a swap without getting into the legalities of issues on either side. ... The hearings are not about the two Michaels, but in the public mind and the emotions of the public, the two are linked."

China, meanwhile, has repeatedly condemned the extradition request, and on Monday foreign ministry spokesman Geng Shuang called for Meng's release.

"The U.S. and Canada abused their bilateral extradition treaty and arbitrarily took compulsory measures against a Chinese citizen without cause. This is entirely a serious political incident that grossly violates the legitimate rights and interests of the Chinese citizen," Geng said. "Once again we urge the Canadian side to take China's position and concerns seriously, release Ms. Meng and ensure her safe return to China at an early date."

Geng also said China and Canada have "stayed in touch" regarding Meng.

However, the case may not finish any time soon.

Evans noted that this hearing is only the very beginning of a lengthy process that will go through three stages and could last for months or even years.

Another hearing, focusing on alleged abuse of process by Canadian authorities, is expected to take place in June. Meng's lawyers argue that irregularities in how she was detained mean the extradition request should be dropped and Meng allowed to go free. A third hearing expected in September could determine if Meng is extradited.

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