UPDATED: Crown argues Meng case should not be thrown out on illegal search alone

The Meng Wanzhou extradition hearings continued today with the Crown wrapping up its response to defence claims that RCMP and border officers abused their power in arresting the Huawei Technologies CFO and seizing evidence illegally, saying that the proceedings should not be stayed - even if Judge Heather Holmes finds police conducted an illegal search.

Lawyer Robert Frater summarized the Crown's case, focusing his attention on Meng's contentions that the CBSA - under the guise of a border entry exam - illegally secured her cell phones and passcode, then passed it on to the RCMP. The defense contends that this amounted to a violation of Section 8 of the Canadian Charter of Rights and Freedoms: That a person "be free from unreasonable searches and unreasonable seizures of their property and their personal information."

"There was an admitted, erroneous passing on of the passcode by the CBSA to the RCMP," Frater said. "It was never used by the RCMP. It was never passed to the FBI based on the evidence before you, but does that amount to a charter violation? Supposedly, if you find a breach on the passcode, all that serves to do is to bring us back where we started... The remedy usually for this violation is the exclusion of said evidence."

Frater said that, in his search, there has only been one precedent where an illegal search alone led to a stay of proceedings: A case where a pregnant woman was arrested for fraud and strip-searched in front of her family.

"Other than that type of extremes, it will be hard to find a case where a Section 8 violation directly led to a stay of proceedings," he said. " It is our submission that we don’t get down to the balancing, because my friends [the Meng defence] have not made out a case of prejudice. In our submission, this motion must fail based on the facts."

Frater also asked Holmes to throw out defence presentations earlier this week that criticized the RCMP's systematic failure to keep e-mail records from officers, including one who retired and had his account wiped soon after his departure. Frater said the defense did not attempt before the presentation to contact the Crown about showing efforts to preserve evidence - a standard procedure - meaning that the Crown could not adequately make a counter-argument on the topic.

Earlier this week, Crown lawyers John Gibb-Carsley and Diba Majzub both presented, focusing their cases on a central point: There is no evidence that retired RCMP officer Ben Chang or any other officers passed along Meng’s device passcode or serial numbers - and the onus is on the defense to prove it in an extradition setting.

Gibb-Carsley added yesterday that the serial numbers being discussed this week are “hardware numbers” - printed physically on the exterior of the devices - and by themselves cannot assist anyone in getting more private data from the devices they were collected from.

In order to do so, the authorities would have to give the serial numbers to the telecom company whose network the phone runs on. In Meng’s case, it’s a Chinese telecom company that would be very unlikely to cooperate, limiting the ability of Meng’s personal data on the phone relating to the serial numbers to be breached.

Rather, Gibb-Carsley said the serial numbers were for the “continuity of evidence,” meaning that the RCMP is merely keeping track of what devices they seized. In addition, the Crown lawyer noted that - while Chang’s e-mails were deleted after he retired in 2019 - an e-mail log kept by the RCMP showed no liaison between Chang and the FBI on either his e-mail account or on his RCMP mobile device, and the possibility that he used a personal device to send the info is unlikely given the complication involving sending a physical number (rather than something that’s digital in its original form).

Gibb-Carsley also noted that the secondary border entry exam conducted by CBSA officials on Meng on Dec. 1, 2018 - the one that lasted almost three hours - was not a separate search to seize evidence for the RCMP, but part of the same admissibility exam that was conducted first upon Meng’s arrival in Vancouver.

“Our position… is that this was a logical and necessary continuation of the ongoing search,” Gibb-Carsley said.

The Crown lawyer also went after Meng’s supposed ties to Canada, which her defense has highlighted through her ownership of two homes in Vancouver and frequent, annual travel to Canada. 

However, Gibb-Carsley said Meng is not registered on the title of either homes (one in Dunbar, another in Shaughnessy), valued at $4.6 million and $13.7 million, respectively.

The Crown said that - even had RCMP officers conducted a title search - they would not have found any information that would change the procedure of treating Meng as a foreign national in trying to enter Canada. The status - as foreigner or as a permanent resident - determines how much regulatory scrutiny a person faces during the border entry exam. The defence had said Meng’s close ties to Canada meant she did not have to go through the 3-hour exam where her electronic devices were taken.

In the afternoon, Crown lawyer Marta Zemojtel launched into arguments against defence claims that the lack of note-taking in the Meng case amounted to “destroying evidence.” Zemoitel argued that, given the context of the situation, officers acted appropriately and did not deliberately try to hide anything - including what the defence claims is a conspiracy to coordinate illegal evidence gathering between the RCMP, the CBSA and the FBI.

Holmes, Zemojtel said, had the responsibility to decide how much weight should be placed on the RCMP/CBSA's lack of notes on the case - and the Crown's position is that the witnesses remained trustworthy despite their note-taking shortfalls.

Meng’s defence will get another change to redirect Monday before the hearings then continue onto another branch of Meng’s argument, which will last until next Thursday according to schedule.