RCMP accused of unlawfully sending Meng Wanzhou's phone information to FBI
Judge gives Crown until next Wednesday to produce affidavits relating to explosive allegation
Meng Wanzhou's legal team levelled a potentially explosive allegation against the RCMP on Thursday, accusing officers of sharing technical information about the Huawei executive's phone with the FBI, in violation of the Extradition Act.
If proven true, defence lawyer Scott Fenton said the provision to U.S. authorities of details including serial numbers and SIM card information would mark an "unlawful" attempt by the agencies to do an end-run around the legal process.
The allegation threw a wrench into a hearing that was supposed to end this week, as B.C. Supreme Court Associate Chief Justice Heather Holmes instead directed Crown attorneys to produce affidavits they claim will prove the information sharing didn't happen.
Meng's lawyers are seeking documents to bolster their claim the Canada Border Services Agency (CBSA), RCMP and FBI conspired to conduct a "covert criminal investigation" against the Huawei chief financial officer.
Fenton said the FBI would normally have to go through a judge or an international treaty to get Meng's phone details.
And even the technical information would have been of value to them.
"It's very significant, because U.S. law enforcement, as part of their tool kit, can make significant use of this technical information regarding electronic devices," he told Holmes.
"It closes the loop. A request was made; the request was honoured."
Meng faces extradition to the United States for allegedly misleading banks about Huawei's relationship with a hidden subsidiary accused of attempting to sell U.S. telecommunications equipment in Tehran.
American prosecutors claim Meng's alleged lies put the banks who cleared transactions for Huawei at risk of violating U.S. sanctions against Iran.
Meng has been living in one of two multi-million dollar homes she owns in Vancouver since she was released on $10 million bail in the weeks after her arrest.
As part of her release, she wears a GPS monitoring bracelet on her ankle and is watched by bodyguards around the clock.
She has denied the allegations.
Her extradition hearing is set to begin in January, but her lawyers were in court for the past two weeks trying to convince Holmes to give them an order for records related to what they claim is an abuse of process at the time of Meng's arrest.
'Not meaningless information'
The 47-year-old's electronic devices took centre stage in the fifth-floor courtroom in the past few days as Meng's lawyers painted a picture that began with an FBI request to seize her phones, laptop and tablet at the time of her arrest.
The FBI wanted the devices placed in signal-proof Mylar bags to prevent them being remotely wiped.
The CBSA detained and questioned Meng for three hours before handing her over to the RCMP for her official arrest. In doing so, the border officers seized and bagged the phones.
They also compelled Meng to give them the passcodes.
But the Crown claimed that none of that happened at the behest of the FBI.
This week, the Crown revealed that border officers later provided the passcodes to the RCMP in error.
They were never used, and the Crown claims the CBSA was just doing its job in seizing them in the first place.
But Fenton said the FBI was clearly interested in the phones from the start.
And as Meng's lawyers combed through notes and emails of RCMP officers provided this week by the Crown, he said they found documents to suggest "significant evidence sharing."
The FBI has since said it no longer wants the devices, a move Fenton called "damage control."
He claimed investigators could have already used the technical information to determine details about calls, text messages and Meng's movements.
"This is not meaningless information," Fenton told Holmes.
"It's the use of the CBSA's powers to gather information for the RCMP as requested ... and now — today — we know that significant information was sent to the FBI."
'We believe it's not a fact'
But lawyers for Canada's attorney general insisted that the RCMP had not shared information from Meng's electronic devices with the FBI.
Crown attorney Robert Frater said Fenton's accusation was wrong.
"We can show that in fact, it was not shared with the FBI," he told Holmes.
"'[Fenton] says it's a very serious allegation — and we believe it's not a fact."
The Crown lawyers spent the lunch hour gathering emails from RCMP officers who said they had not sent the phone details to the FBI.
But Fenton called the emails hearsay and said the defence team has "grave concerns" the information in them was not correct.
That left Holmes with a conundrum.
She was supposed to determine whether there was "an air of reality" to the defence's conspiracy allegations but didn't want to appear to be putting an "artificial" stop to the introduction of new evidence.
In the end, she issued an order for "affidavits based on personal knowledge attaching any relevant records relating to the sharing of information with the FBI from Ms. Meng's electronic devices" from six RCMP officers.
The Crown has until next Wednesday to produce those records, after which Meng's lawyers have a week to determine if they will need to cross-examine any of the officers further.
Holmes won't be able to reach a decision in relation to the request for more records until that process is over.
Meng will have been in Canada for a year at the start of December.