With a historic U.S. election looming and the fate of two Canadians imprisoned in China hanging in the balance, Meng Wanzhou will appear in a B.C. courtroom next week as her lawyers launch their latest attempt to end extradition proceedings against the Huawei executive.
Meng's defence team will argue that the United States provided Canada with a misleading record of the case against her when they sought Meng's arrest on fraud and conspiracy charges in Vancouver in December 2018.
The allegation is one of three lines of attack the Huawei chief financial officer's lawyers plan to pursue in the coming months to convince the B.C. Supreme Court justice overseeing the case that Meng's rights have been violated.
Legal observers say this week's hearings are unlikely to sway the judge, given the nature of Canadian extradition law.
But they believe Canada's justice minister will face increasing pressure to intervene due to allegations of political interference and China's ongoing detention of Canadians Michael Kovrig and Michael Spavor.
University of British Columbia professor Michael Byers, who holds the Canada Research Chair in Global Politics and International Law, says everyone with a stake in the Meng case — politicians, lawyers and the defendant herself — is likely watching the upcoming U.S. presidential election to see how the results might impact the road ahead.
"A change of administration would be quite significant in terms of U.S. foreign policy, and the Meng extradition request might come into play in that regard," Byers said.
"At some point, the political calculations might change for the Trudeau government, or perhaps a Conservatiive government, if we have a federal election in this country."
Accused of lying to HSBC
Meng was detained on Dec. 1, 2018, after flying to Vancouver from Hong Kong en route to a business conference in Latin America.
The 48-year-old is accused of lying to an HSBC executive in August 2013 about Huawei's relationship with a subsidiary accused of violating U.S. economic sanctions against Iran.
Former Democratic U.S. Vice President Joe Biden, right, is running against current Republican President Donald Trump in a November presidential election. Experts say the result could affect Meng Wanzhou's extradition proceedings. (Andrew Harnik/The Associated Press, Olivier Douliery/AFP/Getty Images)
According to prosecutors, HSBC relied on her word to continue financing Huawei, placing the bank at risk of prosecution and loss for unwittingly violating the same set of sanctions.
Meng has accused U.S. President Donald Trump of using her as a bargaining chip in a trade war with China.
She also claims Canadian and American authorities mounted a covert criminal investigation against her, sharing information from her electronic devices and questioning her for three hours before she was officially arrested — contrary to the instructions of the judge who issued the extradition warrant.
The defence and the Crown have agreed on a schedule of intermittent court dates leading up to February 2021, when the judge will hear arguments on alleged violations of Meng's rights.
'A presumption the individual will be transferred'
Starting Monday, Meng's lawyers hope to convince Associate Chief Justice Heather Holmes that claims about the U.S. allegedly misleading the court also meet the threshold needed for consideration as an abuse of process worthy of ending the proceedings.
The defence team claims the U.S. provided the judge with a skewed version of events by omitting facts that prove HSBC didn't rely on Meng's assurances to decide the bank wanted to keep financing Huawei.
Hassan Diab holds a news conference on Parliament Hill, in Ottawa in February. He is seeking compensation from the federal government of Canada over his extradition to France on allegations of terrorism. (Fred Chartrand/The Canadian Press)
Byers said it is rare for judges to end extradition proceedings based on the underlying record of the case.
He pointed to the extradition of Hassan Diab, a 66-year-old University of Ottawa lecturer who was accused by French authorities of involvement in a 1980 bombing outside a Paris synagogue that killed four people and injured more than 40.
Diab was extradited in 2014 to France, where he spent more than three years in near-solitary confinement while the allegations against him were investigated. He was never charged and was returned to Canada in 2018 after French judges dropped the case due to lack of evidence.
Diab and his family are now suing the federal government over the role Canada played in his extradition — including allegations that "convincing and crucial evidence" was kept from the extradition judge, such as the fact Canadian officials had determined that Diab's fingerprints didn't appear to match those of the suspected bomber.
"The extradition system is premised on almost a presumption that the individual will be transferred," Byers said.
"The more common outcome is that the individual is transferred even if there are probable concerns."
'Prolonged and unlawful detention'
Vancouver lawyer Gary Botting, who has written a book on Canadian extradition law, agreed with Byers that the prospects are slim for a stay in Meng's case.
Botting's view of the proceedings is in line with those of 19 high-profile Canadians — including former Liberal cabinet minister Allan Rock and former Supreme Court Justice Louise Arbour — who have called on Justice Minister David Lametti to end them.
Michael Spavor, left, and former Canadian diplomat Michael Kovrig are in Chinese custody, both having been charged with spying. Both men were detained in the days immediately following Meng Wanzhou's arrest. (The Associated Press/International Crisis Group/The Canadian Press)
Their rationale is based on a legal opinion from prominent defence lawyer Brian Greenspan, who concluded that although a justice minister doesn't normally weigh in on extradition until the judicial phase of the process has concluded, the Extradition Act gives Lametti the right to free Meng at any time.
In an open letter to Prime Minister Justin Trudeau, Rock, Arbour and others said they were writing as Canadians "deeply concerned about the prolonged and unlawful detention" of Kovrig, a former diplomat, and Spavor, an entrepreneur, who have been in Chinese custody since the days immediately following Meng's 2018 arrest.
This summer, the Chinese announced formal charges of spying against Kovrig and Spavor. Legal observers believe the pair will almost certainly be found guilty at trial. China's legal system has a 99.9 per cent rate of conviction.
Trudeau has made it clear he views the detention of the 'Two Michaels' as arbitrary and has publicly stated that the U.S. shouldn't reach a trade deal with China that doesn't deal with Meng and the imprisoned Canadians.
But he also rejected the call for Lametti to intervene.
'It was fixed'
Byers said he doubts the government will take any action ahead of the presidential election. But he said the politics of extradition mean that anything is possible afterward.
He said he was peripherally involved in the late 90s in the case that saw Spain try to extradite the late Chilean dictator Augusto Pinochet from the United Kingdom, where he was arrested while seeking medical treatment.
Former Chilean Gen. Augusto Pinochet, shown in 1998 in Santiago, died in 2006. He avoided extradition from the U.K. to Spain with a controversial medical release that was questioned by many. (Santiago Llanquin/The Associated Press)
Pinochet was charged with torture of Spanish citizens and the assassination of a Spanish diplomat during his reign. His arrest caused a global sensation, with human rights activists arguing against those who claimed Pinochet, as head of state, should have immunity from prosecution.
He was cleared for extradition. But in March 2000, Jack Straw, who was then the U.K.'s home secretary, ruled that Pinochet should be returned home because of ill health on questionable medical evidence.
The first thing Pinochet did after landing in Chile was to stand up from his wheelchair to greet supporters.
"It was fixed. That outcome was a fabrication designed to provide political cover for the [U.K.] government," Byers said.
"Politicians can finesse the outcomes in all kinds of imaginative ways."
In the same way, Byers said no matter how things go in the courtroom, pressure from China, the situation of Kovrig and Spavor and Canada's relationship with the United States may yet cause a shift in political calculations for Trudeau and Lametti.
"And this is part of the strategy that Ms. Meng is playing," he said.
"She is trying to draw this case out as long as possible, because she knows that events will occur and that calculations might change."
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