British Columbia

'Inferences' and 'absence of evidence' dog Meng Wanzhou hearing as Crown fights conspiracy theory

It's one error. But is it indicative of a greater pattern? A B.C. Supreme Court judge pondered the importance of a Canada Border Services Agency mistake Wednesday as she tried to decide how the misstep might fit into a conspiracy theory alleged by Meng Wanzhou's lawyers.

Crown draws on case of 'Bambi' Bembenek as example of immigration officials doing their duty

Huawei chief financial officer Meng Wanzhou holds her phone as she heads into B.C. Supreme Court. Passcodes to Meng's phones are now at the centre of arguments that authorities conspired against her. (Darryl Dyck/The Canadian Press)

It's one error. But does it point to a greater pattern?

A B.C. Supreme Court judge pondered the importance of a Canada Border Services Agency mistake Wednesday as she tried to decide how the misstep might fit into a conspiracy theory alleged by Meng Wanzhou's lawyers.

Associate Chief Justice Heather Holmes repeatedly interrupted a lawyer for the Crown as he tried to minimize the significance of border officers giving the Huawei executive's phone passcodes to RCMP in error.

The mistake first emerged as an issue on Tuesday.

Meng's lawyers claim the CBSA and RCMP conspired with the FBI to "trick" Meng into volunteering information during a customs examination before she was officially arrested after landing at Vancouver's airport in December 2018.

Crown attorney John Gibb-Carsley said the passcode mistake needed to be viewed in the context of a larger set of events during which Canadian authorities acted entirely appropriately.

"I'm reminded of the old adage: 'Never let the truth get in the way of a good story,'" Gibb-Carsley told Holmes as he wrapped up the Crown's case.

The problem with the defence's theory of the case, he said: "The truth gets in the way of their story."

Alleged U.S. sanctions violation

Meng's lawyers want Holmes to order the disclosure of a wide variety of documents and records they believe will bolster an argument that Meng's rights were violated in the hours prior to her arrest.

The 47-year-old is facing possible extradition to the United States for allegedly violating U.S. sanctions against Iran.

This phone is one of two seized from Meng when she landed at Vancouver's airport in December 2018. CBSA officers asked her for the passcodes and later passed the codes on to RCMP. (B.C. Supreme Court)

She's accused of lying to banks about the nature of Huawei's relationship with a company in Tehran that was attempting to sell U.S. telecommunications equipment in violation of American sanctions.

Huawei claimed the company, Skycom, was a "local partner." But U.S. prosecutors claim the firm was actually a hidden subsidiary.

Sitting alongside her counsel, Meng has listened intently to arguments put forward by both defence and lawyers for Canada's attorney general.

But the issue of the phone passcodes has proven thorny.

'Inferences from absences'

Border officers seized the phones along with Meng's laptop and tablet when she emerged onto the jetway after flying into YVR from Hong Kong.

The FBI had suggested to RCMP the previous day that the devices be placed in Mylar bags to prevent them from being remotely wiped.

The Crown has argued that the border officers were just doing their job in determining if Meng was admissible to Canada. They say no one has ever actually searched the phones, which the FBI no longer even want.

CBSA officers asked Meng for the passcodes for her phones when they seized her electronic devices. They later passed those codes in error to the RCMP. (B.C. Supreme Court)

But as she considered the facts, Holmes kept returning to the phones.

If the FBI didn't ask the CBSA to seize them, and the CBSA officers were supposedly acting independently, why were the Mylar bags used?

And if the border agents claim that they got the passcodes as part of the process of examining Meng's goods for evidence of criminality, why didn't they search them?

"We're in a situation where we're being asked to draw inferences from absences," Holmes told Gibb-Carsley.

 "Since we're in the land of inferences because of the absence of evidence ... we have the fact that the passcodes were given along with the devices that CBSA took on the jetway and put in Mylar bags, and we have the fact that the U.S. request was for exactly that."

From Meng to Bambi

In making their case, the Crown lawyers also drew on precedent set by one of Canada's most colourful fugitives — Lawrencia 'Bambi' Bembenek, a former Playboy Bunny and police officer who fled north in 1990 after escaping the U.S. prison where she was serving time for killing her husband's ex-wife.

In that case, Canadian immigration officials were accused of using deportation proceedings as a disguised form of extradition.

Lawrencia 'Bambi' Bembenek was a famous fugitive who returned to the U.S. after capture in Canada. While she was here, she set a legal precedent cited by Crown attorneys who are fighting Meng Wanzhou. (The Canadian Press)

Likewise, Meng's lawyers claim that the CBSA search and questioning of Meng was just a pretence for a "covert criminal investigation."

In the Bembenek case, a judge found that immigration officials were acting in good faith in their efforts to deport a convicted killer.

Gibb-Carsley said the officers who dealt with Meng also had a legitimate purpose in guarding the border.

Like Meng, Bembenek's arrest in Canada drew media from around the world, resulting in a cottage industry of Run Bambi Run T-shirts and at least one TV movie, starring Tatum O'Neal.

But the similarities end there.

After fighting extradition, Bembenek returned to Wisconsin willingly in 1992.

Her original conviction was set aside when mistakes were found in the investigation. She pleaded no contest to second degree murder and was released on probation.

Bembenek moved to Washington state in the late 1990s to be with her parents.

She died of liver failure in 2010.

About the Author

Jason Proctor

@proctor_jason

Jason Proctor is a reporter in British Columbia for CBC News and has covered the B.C. courts and mental health issues in the justice system extensively.

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