Trump comments could help Meng defence, say law experts

Huawei CFO’s lawyers will likely build strategy around abuse-of-process accusations

U.S. President Donald Trump handed Huawei CFO Meng Wanzhou’s legal team ammunition when he implied that her detention in Canada could be used as a bargaining chip in China-U.S. trade negotiations, experts say | Stocked House Studio/Shutterstock

With the Meng Wanzhou extradition case likely dragging out over the next several years, top local immigration lawyers say the battle lines are now clearly drawn between the Huawei Technologies Co. Ltd. CFO’s defence and Crown prosecutors seeking to persuade Canadian courts to surrender Meng to U.S. authorities.

Legal observers say Meng’s defence will almost certainly centre on whether there was an abuse of process in the case made by the arresting authorities, ranging from the Canada Border Services Agency (CBSA) and the RCMP to the U.S. Department of Justice and perhaps even the White House.

And even though most cases of U.S.-requested Canadian extradition proceedings end in the surrender of the accused to American authorities, one prominent lawyer and policy consultant to Ottawa said the defence appears to have plenty of ammunition to get the extradition stayed.

Top among them are U.S. President Donald Trump’s comments on December 11 that he would “certainly intervene” in the Meng case if he thought it was necessary. Trump also said the case could be used in trade negotiations with China.

Vancouver lawyer Richard Kurland of the Vancouver-based Kurland, Tobe immigration law firm said that when he heard Trump link the extradition case with U.S.-China trade, he saw that Meng’s defence team could argue that the case was an abuse of process.

“The argument would be that this is not about wire fraud or mail fraud or Iranian sanctions; you are getting to the centre … of an important family at the highest level of Chinese government to create an advantage in your trade negotiations,” Kurland said. “The argument is that this is the intent here – an abuse of the extradition process that is improper.”

He said the defence, led by lawyer Richard Peck, will likely request many documents showing communications between all the departments and officials involved in the arrest. The defence will then try to build a case of an overall pattern of political or other extralegal factors driving the U.S. Justice Department’s request that Canada arrest Meng on December 1 at Vancouver International Airport.

That’s where Meng’s legal manoeuvres up to this point start to appear strategic, Kurland said.

A few days prior to the start of the extradition hearing, Meng filed a civil suit against the CBSA, RCMP and Canadian officials for violating her charter rights. It claimed they held her for three hours without informing her that she was being arrested or informing her of her rights to remain silent and to have an attorney present.

Peter Edelmann of Vancouver-based Edelmann & Co. Law Offices said he agrees Meng’s defence will likely focus on what happened at the airport and Trump’s comments to build an abuse-of-process case, but added that U.S. prosecutors and government lawyers have already started to develop an argument aimed at dealing with Trump’s comments in the public sphere.

“How much can you impute the chief executive’s comments to the country itself? The U.S. Justice Department has been making interesting arguments about Mr. Trump’s comments and how much they can be relied upon,” Edelmann said, noting that U.S. lawyers have argued in court, for instance during the travel-ban case last year, that Trump’s comments do not reflect the stance of the government.

He added that, while Meng’s defence will try to portray an overall pattern of conduct that would indicate abuse of process, Crown counsel and U.S. prosecutors requesting Meng’s extradition will have their work cut out for them. For one thing, the Crown will have to prove that  Meng’s alleged transgressions would result in her going to trial under Canadian law. For another, prosecutors would have to prove that Meng, and not just her company, was directly responsible for the alleged crimes.

The Meng hearings resume on May 8.