Defence claims Meng Wanzhou extradition is 'power grab' by the United States
Crown claims extradition judge's role does not include questions about jurisdiction
A lawyer for Meng Wanzhou claims the United States is making a "power grab" by trying to apply American laws to the Chinese businesswoman's activities in Hong Kong.
Gib van Ert told the B.C. Supreme Court judge overseeing the Huawei executive's extradition proceedings Tuesday the request to render Meng to New York for an alleged fraud that took place entirely outside the United States is completely unprecedented.
The defence lawyer is trying to convince Associate Chief Justice Heather Holmes to stay proceedings against Meng, who is Huawei's chief financial officer.
Van Ert told the judge the U.S request to extradite Meng is itself a violation of the international law that governs a country's right to police its own state and citizens.
"The United States' claim to jurisdiction is unfounded … It is a plainly incorrect claim. It is a plain power grab, if I can put it that way — to be quite blunt," van Ert told the judge.
"Jurisdiction is about power. Jurisdiction is about where states get to exercise their power. And the United States is saying we get to exercise it in Hong Kong."
'An unusual and unprecedented situation'
The U.S. wants Meng rendered to New York, where she is charged with fraud for allegedly convincing HSBC to continue handling financial transactions for Huawei by lying about her company's control of a subsidiary accused of violating U.S. economic sanctions against Iran.
The alleged misrepresentations took place during a PowerPoint presentation at a Hong Kong teahouse in August 2013.
Meng is a Chinese national and HSBC is an Anglo-Chinese bank. But the United States claims jurisdiction because the financial transactions cleared — if only digitally — through the U.S. financial system.
Van Ert disputed the basis for the U.S. claim to jurisdiction Tuesday.
He also set about trying to convince Holmes she has the power to weigh in on breaches of international law. He began by suggesting she had no choice.
"There has never, as best we can tell, been a case where a requesting state has made an extradition request ... but the request itself is contrary to international law," van Ert told Holmes.
"So you find yourself — in my submission — in an unusual and unprecedented situation."
Jurisdiction no concern of extradition judge
In response to the defence claims, the Crown has cited a 1994 Supreme Court of Canada case which found it was not the role of an extradition judge to consider "the jurisdiction of the requesting state to prosecute the offence" — only to determine if the evidence would warrant a trial if the crime were charged in Canada.
That case involved a Canadian charged in the U.S. for his role in a conspiracy to fly cocaine from Colombia to Nova Scotia.
The drugs were seized when the plane made an unexpected stop for fuel in Pennsylvania.
The accused wasn't present in the U.S. at any of the times when the alleged crimes took place, and a lower court judge found the United States lacked jurisdiction to try him.
The higher court overturned that decision.
Van Ert told Holmes the question before Canada's top court was whether a judge could consider U.S. jurisdiction under its own laws to prosecute the accused drug smuggler — not under international laws.
No problem if Meng were American
The Crown has also pointed to a section of the Extradition Act that states that a person can be extradited "whether or not the conduct on which the extradition partner bases its request occurred in the territory over which it has jurisdiction."
Van Ert said the wording was added to the legislation in response to a failed attempt by Romania to extradite Taiwanese sailors who threw Romanian stowaways overboard after discovering them on a trip to Nova Scotia.
In that case, Romania had a legitimate connection to the crime alleged — and van Ert said international law permits states to exert jurisdiction over their nationals.
"If Ms. Meng were American and she did the things that she was alleged to do in the record of the case, there'd be no difficulty in the United States seeking her extradition," he said.
The defence lawyer said the use of the country's currency is not enough to establish jurisdiction.
At one point, the judge asked whether the political nature of international law meant the minister of justice should be the person making a decision about whether the U.S. had overstepped the bounds of its jurisdiction.
Van Ert said it was unlikely that a politician would second-guess the judge if she didn't find the U.S. had broken international law.
"It is a legal question and not a political determination," he said.
"It's simply not a matter you may leave to someone else."