Meng defence zeroes in on details of airport arrest

RCMP, Canadian border agents’ procedure for detaining Huawei CFO targeted by lawyers in latest hearing

Huawei Technologies Co. Ltd. CFO Meng Wanzhou leaves the BC Supreme Court building in Vancouver on September 25 | Chuck Chiang

Attacks by the legal team of Huawei Technologies Co. Ltd. CFO Meng Wanzhou on how Canadian officials carried out Meng’s arrest last December could pose a serious problem for Crown prosecutors trying to make their case for extraditing her to the United States.

That’s the assessment of one prominent immigration lawyer following the case, who said that though the current proceedings are simply for the defence to acquire more information about Meng’s arrest to formally argue their case in the extradition hearing next year, some of their submissions already raise pointed questions that the Canadian attorney general’s office, along with the RCMP and the Canada Border Services Agency (CBSA) has to address.

“The defence did its job,” said Richard Kurland, an immigration lawyer with Kurland, Tobe and a policy adviser for Ottawa. “It outlined that in advance of [Meng’s] arrival in Vancouver, there was collaboration between RCMP, CBSA and others regarding the arrest. It has that air of stage management, and the defence lawyers pointed out that immigration law does not trump criminal law.”

In three days of presentations to BC Supreme Court Justice Heather Holmes, defence lawyers Richard Peck and Scott Fenton hammered on their key argument repeatedly: that there was a court order that clearly states Meng was to be arrested immediately upon arrival in Vancouver by Canadian authorities after the United States notified Canada that the U.S. Department of Justice wants to extradite the Huawei executive on charges of money laundering, circumventing trade embargoes with Iran and stealing other companies’ technological secrets.

Peck and Fenton focused on a 9:30 a.m. CBSA-RCMP meeting at Vancouver International Airport (YVR) on December 1, 2018, the date of Meng’s arrest upon her arrival on a Cathay Pacific flight from Hong Kong. Peck said the meeting was where Canadian authorities changed from the original plan of arresting Meng on the plane immediately upon arrival to a detention at the gate.

Meng was then held by CBSA border agents and questioned for about three hours before being formally arrested. During that time, according to Peck, the CBSA was able to “compel” Meng to release information such as her passwords on her electronic devices and a statement noting Huawei had an office in Iran.

Peck and Fenton then told the court that CBSA agents gave the information to RCMP officers at the scene, which may have then been shared with U.S. authorities for possible consideration for Meng’s criminal investigation south of the border. That process, Peck argued, veered beyond the jurisdiction of an entry inspection by border services agents and violated Meng’s rights under the Charter of Rights and Freedoms.

“Notwithstanding Ms. Meng’s multiple requests, no one answered her,” Peck said. “No one told her she was a subject of arrest, and no one told her the warrant was requested by the United States.”

Kurland said that the defence’s submissions, if true, are problematic for Crown counsel because a person must be notified of his or her rights, including rights to remain silent and to counsel, upon arrest. That means the court could throw out information gathered by CBSA agents during the three-hour border-entry questioning (prior to the execution of the arrest warrant) if the judge rules that the arrest warrant should take precedence over the border-entry check, something that Meng’s defence is contending.

“So the arrest warrant was for an immediate arrest,” Kurland said. “Immediate means immediate means immediate. It doesn’t mean after she gets off the plane. It doesn’t mean after she collects her luggage. It doesn’t mean after her customs examination, and it doesn’t mean after several hours of questioning. That’s not immediate.

“So what the court has to figure out now is, what are the consequences of that? Does it make a difference there may have been a breach of a direct court order? What would bring the administration of justice into disrepute? The contention is the RCMP and CBSA knew Meng would be arrested and ought to have known that, if informed of her rights, she may not have provided those passwords and information. So it’s going to be a problem for the Crown.”

Crown prosecutors are scheduled to respond to defence allegations this week, but in a previously submitted response, prosecutors opposed the release of more information and added that this week’s presentations by Peck and Fenton are unlikely to change the Crown’s stance that all relevant information has already been given.

“What you heard is that they [the defence] do not have the documents and notes of all the RCMP and CBSA officers who attended the meeting at 9:30 a.m. on December 1,” the Crown prosecutors said. “They say the notes they have do not speak to that meeting … [but] they already have everything there is to the meeting.”

In previously filed court documents in response to Meng’s team’s request for additional disclosure, the Crown opposed the request, calling the effort a “fishing” exercise in casting “a drift net … broadly and indiscriminately” to try to prove collusion between Canadian and U.S. officials without specificity on what exactly the defence is looking for.

“The only plan was for the CBSA to carry out its lawful mandate and nothing more,” the response said.

Meng’s defence team, however, presented a number of emails between the CBSA, the RCMP and the U.S. Federal Bureau of Investigation on the day prior to Meng’s arrest. The emails, Peck said, discussed the availability of the warrant, the confirmation that Meng was on the flight, the clothing she was wearing (for identification purposes) and that officers making the arrest should seize only electronic devices from Meng.

Peck said the arresting authorities did not immediately present Meng with her arrest warrant or remind her of her charter rights, but instead “stood by and watched her be interrogated by the CBSA.”

Kurland said it will be telling to see how the Crown replies to these accusations this week. Even though the current court proceedings are officially to allow defence to request more releases of documents from the RCMP and CBSA, the battle for the opinion of the court has already begun well ahead of next January’s formal extradition hearing.

“The wonder of the process is hearing both sides,” he said. “Right now, it’s primarily the defence show, and we do need to hear from the Crown. I’m sure they will have equally compelling arguments that support their contentions. So it’s a complex situation that’s probably going to last for years … unless there’s a resolution in the China-U.S. trade negotiations.”

That last point, Kurland said, is the only way the Meng case will be resolved quickly. The arrest has hurt Canada’s relationship with Beijing, leading to the arrest of two Canadian citizens in China and import bans placed by Chinese authorities on Canadian canola and red meat.

Considering U.S. President Donald Trump’s comments soon after Meng’s arrest that he would “certainly intervene” if he thought it was necessary and if he thought “it’s good for what will be certainly the largest trade deal ever made,” it cannot be ruled out as a possibility that the United States eventually withdraws the extradition request, Kurland noted.

“The president of the United States is on record saying that he can see a way to make the extradition case go away, contingent on trade negotiations,” he said. “When you have something like that, it’s quite the red flag when it comes to abuse of process.”

In the meantime, Kurland said, the key piece of evidence to look for from the proceedings being released will be the recording of Meng’s interview with the CBSA at YVR: “In my cases, when my clients are detained by CBSA, there is an audio-video recording. That’s standard operating procedure, so where is the tape? If it hasn’t been disclosed, it sure ought to be. And if there isn’t a tape, then the question would be, why not?”