Lawyers for Meng Wanzhou claim American prosecutors are trying to "dress up" a sanctions breaking case as a crime in their bid to extradite the Huawei executive to the U.S.
A B.C. Supreme Court judge OK'd the release Thursday of documents detailing arguments Meng's defence team plans to make in January during the first phase of her extradition hearing.
The hearing will deal strictly with the question of so-called "double criminality" — whether or not the crime Meng allegedly committed would be considered an offence in both Canada and the U.S.
Her lawyers say it would not.
"Initiating extradition proceedings in these circumstances would undermine Canada's sovereignty and its independence on the world stage," Meng's lawyers argue.
"It is simply not Canada's role to enforce American foreign policy through our laws, especially when such foreign policy is diametrically at odds with our country's chosen legal framework."
Accused of lying to HSBC bank
American authorities want to prosecute the 47-year-old for fraud in relation to statements she allegedly made in 2013 to an HSBC bank executive in Hong Kong about Huawei's relationship with a company doing business in Iran.
News reports at the time suggested the company — Skycom — was actually a Huawei subsidiary.
Prosecutors say that by claiming otherwise, Meng induced four banks into possible violations of U.S sanctions laws against Iran, putting them at risk of fines and criminal liability.
Meng was arrested at Vancouver Airport a year ago and has been living in one of two multi-million dollar homes she owns in Vancouver since she was released on $10 million bail in the weeks after she was first detained.
As part of her release, she wears a GPS monitoring bracelet on her ankle and is watched by bodyguards around the clock.
She has denied the allegations.
The principle of 'double criminality'
Double criminality is at the core of extradition law.
And Meng's legal team says Canada has taken the view that the underlying conduct has to amount to a crime on both sides of the border, not just that an offence of the same name exists.
To that end, they claim the case against Meng is flawed, because the charge against the telecommunications executive is rooted in sanctions that did not exist in Canada when the Canadian Justice Department approved Meng's arrest.
Canada dropped most of its economic sanctions against Iran in 2016, as part of an international agreement that sought to limit Iran's nuclear ambitions.
The United States withdrew from the deal in 2018 but Canada remained.
As a result, Meng's lawyers say — had the alleged offence occurred in Canada — no matter what Meng told HSBC about Skycom, it wouldn't matter because Canada wouldn't have had any sanctions for the bank to breach.
"Without the risk of a sanctions breach in Canada, there could be no risk of deprivation to HSBC," the defence team argues.
And without any risk of deprivation, Meng's lawyers say, there can be no fraud.
Put another way: "Canada would not be able to seek the extradition of an individual to Canada based on the same impugned conduct.".
Litigation in the media?
Associate Chief Justice Heather Holmes approved the release of the arguments after raising concerns that putting one theory of the case out ahead of the opposing viewpoint might result in the case being litigated in the media.
But both the Crown and the defence say they want to provide the public with transparency.
At the same time, she has reserved a decision about a media application to broadcast Meng's extradition hearing.
The Crown must file its response by early January, but the defence documents give a hint of what it expects to hear: namely that since the transactions HSBC undertook on Huawei's behalf would have had to touch the American financial system at some point, the bank would have to answer to U.S. law regardless.
The January hearing is only expected to last a handful of days.
Depending on the results, further hearings are expected throughout 2020, including a number of dates set in June to hear defence allegations that Canadian and U.S. authorities breached Meng's rights during her arrest.