British Columbia

Crown claims Meng Wanzhou's lawyers failed to prove 'exciting' cross-border conspiracy

A lawyer for Canada’s attorney general urged the judge overseeing Meng Wanzhou’s extradition proceedings Thursday to reject conspiracy theories spun by the Huawei executive’s legal team in favour of a more run-of-the-mill explanation of questions surrounding Meng’s 2018 arrest.

Lawyers for Canada's AG say RCMP and CBSA did nothing wrong faced with unique high-profile situation

Huawei chief financial officer Meng Wanzhou arrives at B.C. Supreme Court where she is contesting an extradition request from the United States. She claims her rights were violated at the time of her arrest in 2018. (Ben Nelms/CBC)

A lawyer for Canada's attorney general urged the judge overseeing Meng Wanzhou's extradition proceedings Thursday to reject conspiracy theories spun by the Huawei executive's legal team in favour of a more run-of-the-mill explanation of questions surrounding Meng's 2018 arrest.

Robert Frater told B.C. Supreme Court Associate Chief Justice Heather Holmes Meng's lawyers have failed to prove the existence of a scheme between U.S. and Canadian authorities to subvert the 49-year-old's rights by carrying out an illicit investigation upon her arrival in Canada.

The defence team is arguing for a stay of proceedings that would allow the Huawei chief financial officer to walk free from criminal charges in the U.S. and return to China.

But as Frater kicked off the Crown's response, he asked Holmes instead to "step out of the weeds" and focus on the facts as she assesses the two versions of events.

"One is an exciting narrative. It involves a covert criminal investigation, witnesses lying on an almost industrial scale and a cross-border coverup," he said.

"The other narrative is more prosaic. It includes two sets of public officials going about their required tasks in circumstances where there was no playbook for determining who should perform their task first."

Defence argues alleged abuses

The U.S. wants to extradite Meng to New York where she faces fraud and conspiracy charges in connection with allegations that she lied to an HSBC executive in Hong Kong about Huawei's control of a subsidiary accused of violating U.S. economic sanctions against Iran.

Prosecutors claim that the bank relied on Meng's alleged misrepresentations in deciding to continue financing the Chinese telecommunications giant, risking loss and prosecution.

In this courtroom sketch, Crown lawyer Robert Frater urges B.C. Supreme Court Associate Chief Justice Heather Holmes not to accept a defence theory of a conspiracy between Canadian and U.S. authorities. (Felicity Don)

The hearing on the extradition request itself is scheduled to begin in May but prior to that point, the defence is arguing to have the case tossed because of alleged abuses of process.

Meng's lawyers wrapped up four days of submissions Tuesday relating to alleged violations of her charter rights during her arrest at Vancouver's airport on Dec. 1, 2018 and the seizure of her electronic goods and cellphones.

The defence claims Canada Border Services Agency officers used their extraordinary powers to detain and question Meng without a lawyer at the behest of the U.S. Federal Bureau of Investigation, even though the RCMP was armed with a warrant for her "immediate arrest."

CBSA officers seized Meng's cellphones and later gave the passcodes to the RCMP in what they claim was a mistake, and the defence contends was deliberate sharing of information. Meng's lawyers have also accused the RCMP of sending electronic technical information from her computers to the FBI in violation of the Extradition Act.

'Focus on the law'

Frater told Holmes she should not lose "focus on the law," which requires a finding "there must be prejudice to [Meng's] right to a fair hearing or to the integrity of the justice system."

He said Holmes wasn't in court to do an "audit" of CBSA and RCMP actions.

Huawei chief financial officer Meng Wanzhou waits with her bags at a CBSA secondary examination station on Dec. 1, 2018. Actions of the CBSA officers who detained Meng have come under scrutiny at extradition proceedings. (CBSA/B.C. Supreme Court)

The Crown lawyer said Holmes should consider five "overarching questions":

  • Did the U.S. request a covert criminal investigation and participate in its coverup?
  • Did RCMP and CBSA agree to participate and cover up?
  • Was it lawful for the CBSA to detain and question Meng before RCMP arrested her?
  • Did either agency breach Meng's charter rights?
  • Was information improperly shared with the U.S. and covered up?

Frater, the author of a book on prosecutorial misconduct, said there is no proof of a conspiracy, and without it, the judge should reject the rest of the defence's argument.

"If they don't establish that, there is no reason for the CBSA and the RCMP to do those things for their own purposes," Frater said.

Holmes interrupted Frater several times to indicate that she believed she could consider RCMP and CBSA misconduct, regardless of whether she found the FBI was pulling the strings.

The judge later also repeatedly questioned another Crown lawyer about the alleged sharing of technical information from Meng's computers.

The Crown claims the FBI wanted the information to make an official request related to the devices, and even if it had been shared, the RCMP would have been within its rights to do so.

Test for abuse of process

In addition to the current set of arguments, Meng's lawyers also claim three other areas of abuse. 

They have argued that their client is being used as a political pawn in a trade war with China, that the U.S. misled Canada about the strength of its case and that the U.S. is reaching beyond its jurisdiction.

Meng Wanzhou makes her way through the B.C. Supreme Court building as she heads to the court where her extradition proceedings are being held. (Ben Nelms/CBC)

Frater said the two sides are likely to argue about the defence's contention that even if any one area of alleged abuse isn't enough to stay the case, Holmes could decide that the cumulative effect warrants putting an end to proceedings.

The bar for abuse of process was established by Canada's highest court in a 2014 decision that emerged from a trial involving two Quebec men charged with firearms and other offences related to an investigation of drug trafficking involving the Hells Angels.

The pair claimed they were victims of police misconduct and that prosecutors tried to force them to forego a trial by threatening additional charges if they didn't plead guilty.

A lower court stayed the proceedings, but the Supreme Court of Canada overruled that decision, because societal interest in having a trial outweighed the Crown wrongdoing.

The top court said judges ruling on applications like Meng's should determine: if the right to a fair trial or the integrity of the justice system is threatened, if an alternative remedy exists and if the interests of the accused outweigh the interests of society in having the case heard.

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