What is double criminality? Meng Wanzhou ruling explained

Meng Wanzhou, chief financial officer of Huawei, leaves her home to go to B.C. Supreme Court in Vancouver, Wednesday, May 27, 2020. THE CANADIAN PRESS/Jonathan Hayward

TORONTO — The alleged fraud that Huawei executive Meng Wanzhou is accused of committing by U.S. authorities would be considered a crime in Canada if it happened here, a British Columbia judge ruled Wednesday, marking a major loss for the powerful Chinese businesswoman in her ongoing extradition battle.

Associate Chief Justice Heather Holmes found that the case against Meng passed the test of double criminality, a basic principle of Canadian extradition law. In Canada, a person cannot be extradited to face punishment in another country for behaviour that wouldn’t be considered criminal in Canada.

The 48-year-old Chinese executive, who has been under house arrest in her Vancouver mansion, was charged last year with bank and wire fraud in the U.S. for allegedly misrepresenting Huawei's relationship with a subsidiary doing business in Iran and allegedly deceiving banks into potentially violating U.S. sanctions against Iran.

Meng and Huawei deny the charges.

Before Wednesday’s ruling, Meng’s lawyers argued that double criminality would not be met because Canada did not have sanctions similar to those the U.S. had against Iran when the allegations against her were made.

The Crown argued that the decision wasn’t about sanctions, but about the question of fraud.

In her 23-page decision, Justice Holmes ruled against Meng, writing that "Canada's law of fraud looks beyond international boundaries” and that the U.S. trade sanctions can be considered as context in the case.

The ruling was what many lawyers watching the case expected, according to CTV News legal analyst Boris Bytensky.

“It was the decision that was easiest to write because, as the judge ultimately found, had the same conduct occurred in Canada, even in the backdrop of sanctions against Iran, it still likely would’ve constituted a fraud. And that’s exactly what the judgement today came down to,” Bytensky told CTV News Channel on Wednesday.

In other words, Bytensky said, the judge found that "had a Canadian person in Canada been dealing with a U.S. bank and misrepresenting something to a U.S. bank for the purpose of skirting U.S. sanctions against Iran, that would constitute a crime in Canada.”

The much-anticipated ruling means that Meng will not be free to leave Canada, as her lawyers pushed for, and will remain under house arrest.

She is due in court again in June for a separate legal argument about whether her rights were violated when she was arrested at Vancouver’s airport on Dec. 1, 2018. Meng’s lawyers allege that she was unlawfully detained, searched and questioned by border officers with the intention of passing along evidence to the FBI.

Bytensky called that argument “a bit of a long shot.”

“I obviously don’t want to pre-judge anything, but these are very rare in extradition proceedings to result in a stay of proceedings,” he said.

“She would have to show that the misconduct — even if there was any — was not just some violation of her rights, but it was so significant that it would effectively shock the conscience of ordinary Canadians to allow this case to proceed, justifying a stay of proceedings,” he said, calling the argument “an uphill battle.”

Wednesday’s ruling advances the extradition case forward, but it’s hardly close to being finished, Bytensky said.

He pointed to the case of German-Canadian arms lobbyist Karlheinz Schreiber, who was arrested in Canada in 1999 on German charges of tax evasion and fought extradition for 10 years. He was eventually extradited in 2009 and later convicted in Germany.

With all the legal appeals that Meng is permitted to make and the fact that the case could potentially make it all the way up to the Supreme Court of Canada, Bytensky said the case will likely still require years, not months, to complete.

The case against Meng has deep political consequences in Canada-China relations. Nine days after Meng’s arrest, Canadians Michael Kovrig and Michael Spavor were detained in China and accused of crimes related to national security.

The arrests have been widely seen as a form of retaliation from China, and Prime Minister Justin Trudeau has accused China of using “arbitrary detention as a tool to achieve political goals.

Despite the wider ramifications, international lawyer Christopher Burkett said ahead of Wednesday's ruling that he didn’t expect politics to make a difference in the courtroom.

“I think the Canadian justice system has shown time and time again to be independent of the political arena. We have a system based firmly in the rule of law. It’s a term that’s used often, and sometimes overused, but really boiled down it is that the law is the Queen, and not the other way around,” he told CTV News Channel.