A lawyer for Meng Wanzhou says the U.S. threatens to make Canada complicit in an abuse of international law by using extradition proceedings to pursue the Huawei executive for actions that have nothing to with the United States.
Gib van Ert opened up a new line of defence attack in the high-profile case Monday by arguing that the B.C. Supreme Court judge overseeing the proceedings should find the U.S. lacks proper jurisdiction to prosecute Meng.
"The United States' extension of its criminal law to Ms. Meng, its indictment of her in a New York court and its pursuit of her in Canada through this extradition proceeding are all serious misconduct," van Ert said.
"This proceeding is, we say, an abuse by the United States of the extradition process."
U.S. laws 'do not apply in China'
Meng is Huawei's chief financial officer and the daughter of the Chinese telecommunications company's billionaire founder, Ren Zhengfei.
The U.S. wants to extradite the 49-year-old to New York, where she is charged with fraud and conspiracy in connection with alleged lies she told an HSBC executive in Hong Kong in 2013 about Huawei's control of a subsidiary accused of violating U.S. economic sanctions against Iran.
Prosecutors claim HSBC relied on Meng's alleged misrepresentations in deciding to continue handling financial transactions for Huawei, risking loss and prosecution in the process.
Van Ert is a new face on Meng's vast legal team. According to his website, he is a frequently cited authority on the application of international law in Canadian courts and a former executive legal officer at the Supreme Court of Canada.
He told Associate Chief Justice Heather Holmes customary international law is grounded in an understanding of the world as divided into separate states, each of which is responsible for the laws inside its territories.
"The United States is prohibited by international law from applying its criminal law to events and people that have nothing to do with it," he said.
"United States laws do not apply in China."
'We live in an interconnected world'
Van Ert said what happened in a Hong Kong restaurant "between a Chinese national and an Anglo-Chinese bank is, as a matter of international law, no business of the United States."
"If any law was broken that day, that is the concern of China, in whose territory the events occurred," van Ert told the judge.
Prosecutors have argued the U.S. can claim jurisdiction because the financial transactions that HSBC handled for Huawei had to be cleared through the U.S. dollar system — which means they technically pass through U.S. territory.
But van Ert said that process — known as dollar clearing — is not enough to establish jurisdiction.
"We live in an interconnected world. Crime does not respect borders and international law appreciates that and accommodates it," he said.
"If the United States could show some genuine and substantial connection between its lawful interests and the events of that day in Hong Kong, then international law would permit the United States, exceptionally, to extend its criminal law to Ms. Meng."
In submissions filed with the court, the defence team cited a recent Supreme Court of Canada ruling in which Eritrean workers were allowed to continue a lawsuit against the Canadian owners of a mine where they were allegedly beaten, punished and subjected to danger.
In that case, Justice Rosalie Abella wrote that "customary international law is also the law of Canada.
"The fact that customary international law is part of our common law means that it must be treated with the same respect as any other law."
'Marooned' in a foreign country
In a filed response, the Crown says the issues van Ert is raising should be argued before a trial judge if Meng is rendered to New York to face the charges against her.
The Crown claims the scope of Holmes' responsibilities under the Extradition Act is fairly narrow and doesn't allow her to consider deeper questions about international jurisdiction.
But van Ert claimed the consequences of a U.S. violation of international law have been "personal for Meng" who has spent more than two years "marooned" in a foreign country fighting for her freedom.
He said other judges have stayed extradition proceedings because of similar breaches.
"If Canada extradites Ms. Meng to the United States, it will itself be breaking international law," he said.
The arguments over jurisdiction are expected to last the rest of the week, after which the extradition proceedings will pause for a three week break before resuming for a final block of hearings scheduled to last until mid-May.
Earlier on Monday, the defence wrapped up another line of attack on the case, concerning alleged violations of Meng's Charter rights at the time of her arrest.
Meng's lawyers have also argued that she is being used as a political pawn and will claim that the U.S. misled Canada about the strength of its case during the last block of hearings.
Holmes will then have to decide on the extradition request itself and whether she should accept any or all of the arguments aimed at staying the proceedings.
Meng has denied the allegations against her.