Defence urges judge not be a 'rubber stamp' in Meng Wanzhou extradition case

A lawyer for Meng Wanzhou says the B.C. Supreme Court judge considering a U.S. request to render the Huawei executive to New York to face fraud charges shouldn't act as a "rubber stamp" for extradition.

Eric Gottardi cited the words of former Supreme Court of Canada chief justice Beverley McLachlin Friday as he laid out the defence's arguments during the final leg of Meng's extradition proceedings.

In a 2006 decision, McLachlin wrote that an extradition "judge must act as a judge, not a rubber stamp" when considering the facts and law in cases like Meng's.

Gottardi told B.C. Supreme Court Associate Chief Justice Heather Holmes that while an extradition hearing is not a trial, she does have the right to perform a "limited weighing" of the evidence before her — which he claimed was "manifestly unreliable."

"The extradition judge must have this power as a matter of fundamental justice," he said.

"Otherwise the extradition risks becoming the rubber stamp the chief justice warned us about and it would undermine the basic demands of justice."

Alleged fraud based on a Powerpoint

Meng is Huawei's chief financial officer and the daughter of the Chinese telecommunication giant's billionaire founder, Ren Zhengfei.

The U.S. wants her extradited to face charges of fraud and conspiracy in relation to an allegation that she lied to an HSBC executive in Hong Kong about Huawei's control of a subsidiary named Skycom.

Concerns about the relationship between the two companies arose after a series of Reuters reports suggesting that Skycom was violating U.S. economic sanctions against Iran.

Meng is accused of giving a Powerpoint which suggested that Skycom was just a local business partner and that Huawei conducted its operations in strict compliance with sanctions.

Prosecutors claim HSBC's decision to continue a financial relationship with Huawei was based on Meng's assurances, putting the bank at risk of loss and criminal prosecution for clearing transactions tainted by sanctions breaches through the U.S. banking system.

'Exceptional, both legally and factually'

Gottardi began the defence's case by disputing Crown lawyer Robert Frater's concluding arguments Thursday in which he said that — absent the involvement of sanctions — Meng's alleged fraud was not "unique or unprecedented."

"We say it is exceptional, both legally and factually," Gottardi told Holmes.

"It is exceptional in important ways that affect the requesting state's ability to obtain committal."

Gottardi described the Crown's case as "fatally flawed."

He said there is no evidence Meng deceived the bank, no evidence HSBC suffered any loss and — crucially to establish a fraud charge — no proof Meng's actions actually caused the harm alleged.

"One of the things that makes this case so unusual is the difficulty in pinning down exactly what risk is alleged by the requesting state to form the basis of the fraud," Gottardi said.

He said the bank didn't lose money and has never faced any criminal or civil liability. The defence also rejects the Crown's contention that HSBC's reputation was at risk.

Gottardi said there wasn't a "scintilla" of evidence that anything Meng said had an impact on HSBC's decision making. And he said the statements made in her Powerpoint were true.

Gottardi's colleague later told Holmes there was also no evidence about the truth of the Reuters articles which sparked the Powerpoint, the charges and the extradition.

Gaps 'have to be bridged by evidence'

Holmes has to make her decision based on a record of the case provided by U.S. prosecutors, detailing a narrative of events, witnesses and their expected testimony.

She has to determine whether there would be enough evidence to send Meng to trial for fraud in Canada if her alleged offences had occurred in this country.

Gottardi presented Holmes with past cases where judges have denied extradition, including a 2005 case in which the Ontario Court of Appeal overturned a ruling that would have sent a defendant to the U.S. to face drug-trafficking charges.

The judges in that case said that while it was fair to infer that cash found in a secret compartment in the gas tank of the defendant's car was the proceeds of illicit activity, the illicit activity wasn't necessarily drug trafficking.

The appeal court said evidence was needed to make the connection.

Gottardi said the U.S. case against Meng is full of "gaps that we say have to be bridged by evidence, not by educated guesses."

The defence is expected to continue its arguments into the middle of next week, after which the Crown will have a chance to respond.

The proceedings are scheduled to wrap by Aug. 20.

Holmes is likely to reserve her decision and deliver a ruling in the coming months on the extradition request as well as an assortment of defence applications to stay the proceedings because of alleged abuses of Meng's rights.