Defence, prosecution oppose cameras in courtroom

Huawei CFO, Crown seek to block media request to broadcast extradition proceedings

Immigration lawyer Richard Kurland: “just proving prejudice isn’t enough” | Chung Chow

It makes sense for Meng Wanzhou’s defence team to try to fight a Canadian media consortium’s request to broadcast from the courtroom during the Huawei Technologies Co. Ltd. executive’s extradition proceedings next year, a leading legal observer says.

But Richard Kurland added that it is rare for the Crown to join in with Meng’s team in opposing the broadcasts. He said that while it’s natural for the defence to try to limit public access to images and information presented in court, he doesn’t see a strong legal case for the argument.

The analysis comes after David Martin, one of Meng’s lawyers, made the case opposing a media consortium of 13 outlets’ request to broadcast proceedings on the internet and other video platforms. Martin made the case that Meng’s rights to a fair trial in the United States would be compromised should she be extradited.

Martin charged that U.S. President Donald Trump’s past comments about bringing up the Meng case in trade negotiations with China raised the spectre of political intervention in the case.

In a court submission, Meng’s legal team contends that “the politicalization of these proceedings has had an impact on their fairness.

“Should she [Meng] refrain from advancing a particular argument because it might displease senior officials in the Requesting State [the U.S.], perhaps even the President himself who has the ultimate authority to discontinue extradition proceedings as he sees fit?” Meng’s team said in court filings. “If the Requesting State views her as a ‘trade chip,’ what repercussions will her legal decisions within these proceedings have on the Chinese economy?

“If the applicant [Meng] continues to rigorously contest the extradition request, would President Trump intervene to seek harsher penalties against her?”

Perhaps surprisingly, Crown prosecutors back the defence in opposing the video broadcasts, saying in filings that “there has been significant media coverage of Ms. Meng’s extradition proceedings.”

“The Media Consortium has not established that their current coverage is inadequate. The Attorney General of Canada acknowledges that there is significant interest in this matter, but that alone does not justify the request for live broadcasting of the proceedings.”

Meng has been contending that Canadian Border Services Agency officials and the RCMP worked with U.S. authorities last December in Vancouver to improperly seize evidence such as her laptop and mobile devices containing pass codes before formally arresting her and notifying her of her rights to legal counsel. The Crown has countered that it is normal for border officials to conduct interviews first, and that they had the legal right to examine Meng’s belongings to assess admissibility.

Kurland, who is with the Kurland, Tobe Immigration Law firm and has served as an immigration policy consultant for Ottawa, said public access to information in court is sometimes limited, but usually only in cases in which public disclosure would severely interfere with the fairness of the proceedings.

“For example, if a victim’s blood can be seen all over the body of the accused, that doesn’t mean the accused did it,” Kurland said. “But it’s highly prejudicial and inflammatory, and that is a problem for the fairness of the system. There is room for, within reasonable limits, keeping the public out of a courtroom … but the court has to balance what could go wrong with the public interest.”

The issue for the Meng defence, in this case, is that the rule of law in Canada is predicated on the principle of being open to all, and the burden is on the defence to prove that the impact on fairness would outweigh the public interest in seeing the proceedings. (All Meng proceedings since her arrest last December have been open for the public to attend.)

“To limit public access, there are checklists,” he said. “Is there a security risk? Is there an intelligence risk or a health risk? Is there risk to one of the witnesses, accused or litigants?

“That’s not an issue here, because everyone knows what the names are. What about the judicial process itself? How would access to the information disclosed in court prejudice the proceedings? I don’t think there’s secret information that would taint witness testimonies. There’s no jury. So when you run it through the gauntlet of checklists, where’s the harm?

“Just proving prejudice isn’t enough. The Meng team would be on stronger ground if there were national security concerns, or if they were going to disclose information in Canada that they don’t want American officials to hear. But I don’t think that’s real.”

However, Kurland believes that Meng’s team is acting in the best interest of its client in wanting to influence the public narrative about the high-profile proceedings. A single image can be a powerful catalyst in Canadian public forums, Kurland noted, citing for example the photograph of three-year-old Syrian refugee Alan Kurdi dead on a Turkish beach after drowning in a failed attempt to reach Europe. The picture had a profound impact on Canadian elections and refugee policy since 2015.

The motives for the Crown, Kurland said, would be to reduce the political risk of uncontrolled messages to the public. But he said that raises another issue of whether political considerations should enter into Ottawa’s legal strategy in the case.

“Should politics enter the government’s legal strategy? Maybe yes, maybe no. It depends on your view of the exercise, in a rule-of-law context, of discretion of a senior minister to decide to shut down the extradition case.

“In that sense, the Chinese aren’t wrong in the sense that they are asking Canada to close the extradition case. It’s the way they are asking that’s wrong. Under the rule-of-law system, the rules entitle a senior minister to shut down an extradition matter, so the rule of law permits this ministerial interference. But … the Chinese believe this can be done for political purposes, and that’s the error. A minister can interfere when there’s new evidence that comes to light that causes the minister to reconsider pursuing an extradition case, which is very different than saying, ‘Just shut it down.’”

The Meng proceedings are slated to resume in January, when Heather Holmes, associate chief justice, will make a decision on the broadcast request.