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Five things disclosed in latest release of documents in Meng Wanzhou's case
The Canadian Press
Published Tuesday, September 24, 2019 1:55AM EDT
VANCOUVER -- The extradition trial for Huawei executive Meng Wanzhou won't begin until January but details of the arguments her defence team and Crown attorneys plan to make are already being released. Hundreds of pages of documents were released Monday as part of a hearing in which Meng's defence team is asking for access to further documentation to prove its case.
Here are some details from the new material:
1) The FBI requested reports from the Canada Border Services Agency after Meng's detainment.
An employee of the border agency wrote an email on Dec. 4, 2018, to an information-sharing department of the CBSA to advise that the FBI was seeking its reports about the examination of Meng. The FBI request says the documents are covered by a memorandum of understanding with the Canadian agency and it intends to use them to corroborate the information she provided and facilitate upcoming court hearings.
However, the Canadian department replied that the memorandum does not apply and the documents cannot be shared directly. Instead, it said the FBI must make a request under what's known as a mutual legal assistance treaty, which allows for information sharing between two countries in order to enforce criminal laws.
The border services agency did determine that Meng's recent travel history was covered and provided it to the FBI. It shows that she passed through Vancouver's airport seven times in 2018.
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2) The FBI no longer wants access to Meng's electronic devices.
The defence team plans to argue that Canadian officials acted as "agents" of the United States and points to the seizure of Meng's electronics at the airport and the way they, along with a list of passwords, were passed on to the RCMP as evidence the content was FBI-bound. Lawyer John Gibb-Carsley, who represents the Attorney General of Canada, writes in a letter dated Aug. 1, 2019, to one of Meng's defence lawyers that the FBI is no longer interested. The Attorney General of Canada wants to return the devices to Meng on the condition that her team accept its assertion that neither the Mounties nor border officials searched them.
"In light of our representations, we would expect that you will not advance the allegation before the court that the devices were searched," the letter says. "If it is your intention to maintain the allegation, we will need to seek a court order to have the devices forensically analysed to confirm that the devices were not searched."
Since then, the Attorney General says a forensic report shows the passcodes were never used by the border services agency.
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3) Executives at the Canada Border Services Agency discussed a communication strategy around Meng's detention.
Handwritten notes by Robyn Quinn, assistant to the agency's vice-president, suggest senior officials considered how to portray events at the airport. The notes identify several areas of concern including the perception that border officials only pulled Meng because of the arrest warrant, whether meeting her on the jetway constituted a detention and whether border officials handed her passwords over to the RCMP. The officials appeared to develop a tone and strategy for talking points, as the notes also include things like "don't suggest at any point that RCMP was leader," "we can explain wasn't detention was processing," and "be as truthful (plus) responsive as possible."
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4) The list of passcodes that a border official wrote down for Meng's devices only include her two phones.
Officials confiscated seven of Meng's electronic devices at the airport and the defence team has highlighted the fact that a border official wrote down Meng's passwords and passed them, along with the devices, to the RCMP. That note, which the defence team says "has finally been disclosed," in fact only includes pin codes for her two phones, her Huawei phone number, and a line adding her iPhone number is unknown but is included in her Huawei phone's contact list. Still, the defence team argues that placing the phones in a special bag that blocks them from remote wiping was a break from procedure and can only indicate they were being preserved for use by the United States.
The Crown says in its written reply to the defence's request for documents that border officers took her cellphones and placed them into evidence bags and wrote down the passcodes, but did not search the phones. The border agency has legal authority to examine phones and it is common practice for it to request passcodes, the Crown says, and there is no evidence that the RCMP or FBI requested that border services obtain the passcodes.
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5) Meng told a border agent about her travel and property ownership.
A border officer wrote in a solemn declaration following an interview with Meng at the airport that she stated she visits Canada two to three times per year. She said she was currently travelling on a 12-day business trip to Mexico, Costa Rica, Argentina and France. Stamps in her passport revealed she had been to nearly two dozen countries across the globe.
She told the officer she owned property in multiple countries: two houses in Vancouver, three apartments in London, two houses in Hong Kong and two houses in Shenzen, China. Meng added that although she used to have a People's Republic of China passport, she relinquished it when she got her Hong Kong passport, and had no status in any other country than Hong Kong.
The Canadian Press
Published Tuesday, September 24, 2019 1:55AM EDT
VANCOUVER -- The extradition trial for Huawei executive Meng Wanzhou won't begin until January but details of the arguments her defence team and Crown attorneys plan to make are already being released. Hundreds of pages of documents were released Monday as part of a hearing in which Meng's defence team is asking for access to further documentation to prove its case.
Here are some details from the new material:
1) The FBI requested reports from the Canada Border Services Agency after Meng's detainment.
An employee of the border agency wrote an email on Dec. 4, 2018, to an information-sharing department of the CBSA to advise that the FBI was seeking its reports about the examination of Meng. The FBI request says the documents are covered by a memorandum of understanding with the Canadian agency and it intends to use them to corroborate the information she provided and facilitate upcoming court hearings.
However, the Canadian department replied that the memorandum does not apply and the documents cannot be shared directly. Instead, it said the FBI must make a request under what's known as a mutual legal assistance treaty, which allows for information sharing between two countries in order to enforce criminal laws.
The border services agency did determine that Meng's recent travel history was covered and provided it to the FBI. It shows that she passed through Vancouver's airport seven times in 2018.
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2) The FBI no longer wants access to Meng's electronic devices.
The defence team plans to argue that Canadian officials acted as "agents" of the United States and points to the seizure of Meng's electronics at the airport and the way they, along with a list of passwords, were passed on to the RCMP as evidence the content was FBI-bound. Lawyer John Gibb-Carsley, who represents the Attorney General of Canada, writes in a letter dated Aug. 1, 2019, to one of Meng's defence lawyers that the FBI is no longer interested. The Attorney General of Canada wants to return the devices to Meng on the condition that her team accept its assertion that neither the Mounties nor border officials searched them.
"In light of our representations, we would expect that you will not advance the allegation before the court that the devices were searched," the letter says. "If it is your intention to maintain the allegation, we will need to seek a court order to have the devices forensically analysed to confirm that the devices were not searched."
Since then, the Attorney General says a forensic report shows the passcodes were never used by the border services agency.
------
3) Executives at the Canada Border Services Agency discussed a communication strategy around Meng's detention.
Handwritten notes by Robyn Quinn, assistant to the agency's vice-president, suggest senior officials considered how to portray events at the airport. The notes identify several areas of concern including the perception that border officials only pulled Meng because of the arrest warrant, whether meeting her on the jetway constituted a detention and whether border officials handed her passwords over to the RCMP. The officials appeared to develop a tone and strategy for talking points, as the notes also include things like "don't suggest at any point that RCMP was leader," "we can explain wasn't detention was processing," and "be as truthful (plus) responsive as possible."
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4) The list of passcodes that a border official wrote down for Meng's devices only include her two phones.
Officials confiscated seven of Meng's electronic devices at the airport and the defence team has highlighted the fact that a border official wrote down Meng's passwords and passed them, along with the devices, to the RCMP. That note, which the defence team says "has finally been disclosed," in fact only includes pin codes for her two phones, her Huawei phone number, and a line adding her iPhone number is unknown but is included in her Huawei phone's contact list. Still, the defence team argues that placing the phones in a special bag that blocks them from remote wiping was a break from procedure and can only indicate they were being preserved for use by the United States.
The Crown says in its written reply to the defence's request for documents that border officers took her cellphones and placed them into evidence bags and wrote down the passcodes, but did not search the phones. The border agency has legal authority to examine phones and it is common practice for it to request passcodes, the Crown says, and there is no evidence that the RCMP or FBI requested that border services obtain the passcodes.
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5) Meng told a border agent about her travel and property ownership.
A border officer wrote in a solemn declaration following an interview with Meng at the airport that she stated she visits Canada two to three times per year. She said she was currently travelling on a 12-day business trip to Mexico, Costa Rica, Argentina and France. Stamps in her passport revealed she had been to nearly two dozen countries across the globe.
She told the officer she owned property in multiple countries: two houses in Vancouver, three apartments in London, two houses in Hong Kong and two houses in Shenzen, China. Meng added that although she used to have a People's Republic of China passport, she relinquished it when she got her Hong Kong passport, and had no status in any other country than Hong Kong.
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Huawei chief financial officer Meng Wanzhou, who is out on bail and remains under partial house arrest after she was detained last year at the behest of American authorities, leaves her home to attend a court hearing in Vancouver, on Sept. 24, 2019.
DARRYL DYCK/The Canadian Press
Huawei chief financial officer Meng Wanzhou returned to a Vancouver court on Tuesday as her lawyers argued Canada abused its immigration processes to gather evidence against her, a claim the government says is without an “air of reality.”
Meng, 47, was detained at Vancouver’s airport on Dec. 1 at the request of the United States. She was charged with bank fraud and accused of misleading HSBC Holdings Plc about Huawei Technologies Co Ltd’s business in Iran. She has said she is innocent and is fighting extradition.
At Tuesday’s hearing before Justice Heather Holmes in British Columbia Supreme Court, Meng lawyers pressed for more disclosure from the government.
Meng’s lawyer Richard Peck told the judge no one answered Meng when she repeatedly asked border officials why she was being detained. “She was not told she was the subject of an arrest warrant,” Peck said. “She was not told this was a warrant that came out of the U.S. that had to do with activities some years ago.”
Meng sat in the well of the courtroom in a short black dress with glittering sequins around the neckline and sleeves. She had a black case of an electronic monitoring device strapped to her left ankle.
The three-day hearing is scheduled to end on Wednesday and expected to resume Sept. 30.
Meng was searched and questioned by border officers when she landed in Vancouver from Hong Kong. She was not arrested on a provisional warrant and told her rights until about three hours after her arrival.
At Tuesday’s hearing, Meng lawyers played portions of a video without sound of Meng from when she was detained at the airport.
’FISHING EXPEDITION’
In a filing submitted on Monday, Meng’s lawyers said they want to know why Canadian police allowed the lengthy border examination, and why the U.S. Federal Bureau of Investigation wanted contact information for officers on the day she arrived.
In another submission released on Monday, the attorney-general of Canada said there was no evidence border officials or police acted improperly, or that the conduct of Canadian or foreign officials compromised the fairness of the extradition proceedings.
The defense claims that, if the process was abused, it justifies halting extradition proceedings. Besides accusations of misconduct related to her detention, they argue the United States is using Meng for economic and political gain, noting that after her arrest, U.S. President Donald Trump said he would intervene if it would help close a trade deal.
The government claims there is no justification for halting extradition proceedings. In its filing, it called the defense’s effort for more disclosure a “fishing expedition.”
The arrest has strained China’s relations with both the United States and Canada. In Beijing, China’s Foreign Ministry reiterated the government’s call for Meng to be released and allowed to return to China.
Meng, the daughter of Huawei founder Ren Zhengfei, spent 10 days in jail in December but was then released on C$10 million ($7.5 million) bail and is living in one of her two multimillion-dollar homes in Vancouver.
Huawei, the world’s largest telecommunications equipment maker, has been accused by the United States of activities contrary to national security or foreign policy interests. It is also a defendant in the U.S. case against Meng. Huawei denies the charges.
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Defence lawyers for Meng Wanzhou claim the Huawei executive was "tricked" into volunteering information about herself and her company when border officers detained her at Vancouver's airport in December 2018.
Meng's legal team accused Canadian authorities Wednesday of manipulating details and leaving out crucial facts about the 47-year-old's arrest in an attempt to make it look like Meng was taken into custody in textbook fashion.
"Ms. Meng was tricked and she was both unlawfully and unfairly deprived of her constitutional rights," defence lawyer Scott Fenton told B.C. Supreme Court Associate Chief Justice Heather Holmes.
"There appears to be evidence of a strategy to recast events differently than they were."
Fenton wrapped three days of submissions Wednesday afternoon, in which he asked Holmes to order Canada's attorney general to produce records that might bolster the defence's claims of an abuse of process.
Meng is fighting extradition to the United States, where she faces fraud charges for allegedly lying to banks about Huawei's relationship to a shadow subsidiary accused of evading sanctions against Iran.
Meng moves through the courthouse flanked by security guards. (Darryl Dyck/Canadian Press)
This week marked Meng's return to the court after four months away from the spotlight.
Wearing blue slacks, a striped blouse and a green sweater draped over her shoulders, Meng followed the arguments intently from a desk alongside her counsel.
The public gallery had thinned out by day three, but a clutch of Huawei employees remained.
During the breaks, Meng walked up and down the corridors of the courtroom, holding forth to her companions as earpiece-wearing security guards fanned out around her.
Meng's actual extradition hearing is scheduled for January 2020. This week's proceedings relate to a separate but included process in which her lawyers will ultimately argue the case should be tossed because of charter rights violations.
Meng listens to her translator as she follows her legal team's arguments from a seat beside her counsel. (Jane Wolsak)
The allegations at the heart of the hearing relate to the three hours Meng spent in custody with the Canada Border Security Agency (CBSA) before she was arrested and afforded the right to call a lawyer.
During that time, her lawyers say CBSA officers seized Meng's electronic devices, asked for her passwords and questioned her about Huawei's business in Iran — all without ever divulging the existence of an arrest warrant.
Meng's lawyers claim the CBSA used its extraordinary powers to gather information for the RCMP and the FBI as part of a "covert criminal investigation."
'In no universe of possibilities'
The Crown claims the defence is on a "fishing" expedition and that the CBSA officers were simply acting according to their mandate, processing Meng through customs as her entry into Canada was not a foregone conclusion.
But Fenton said that assertion is "absurd."
"She was never going to be returned to Hong Kong or not allowed into Canada," he told Holmes.
"In no universe of possibilities was Ms. Meng going to be turned away."
The hearings concern the three hours that Meng spent in CBSA custody before she was officially arrested by RCMP. (Court proceedings)
Fenton also accused CBSA officers of attempting to conceal their actions by omitting details from the notes provided to defence.
In one case, he said, the officer who seized Meng's laptop and phones makes no mention of the fact he was provided with bags specially designed to block any outside attempts to wipe their contents.
Fenton claimed that key details about meetings between CBSA and RCMP officers were missing.
And that, while one border officer's declaration that he was on hand to screen passengers as they emerged from the plane might have been technically correct, in reality, there was only one passenger he was there to intercept.
"If one simply read the CBSA's version of events, one would never know that those events occurred," Fenton said.
'Troubling' notes
The Crown is expected to make its arguments next week. Neither side has to argue the merits of the abuse of process claims at this point, but the defence has to establish that there is an "air of reality" to the allegations.
Fenton presented the court a narrowed list of the kinds of documents the defence is looking for, indicating that he was interested in travelling up the chain of command within the RCMP for documents relating to the arrest.
He said Meng's legal team is also hoping for more information from an assistant to the vice-president of the CBSA whose "troubling" notes have already revealed concerns within the agency about public perception.
"For outsiders/lawyers looks like may have been collusion, even if not," one of the notes read.
A lawyer for the attorney general told the judge that despite defence attempts to narrow their demand for documents, the Crown was likely to argue it had already provided all the information it can.
Next week's hearing is expected to last for five days.
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Canada Border Services Agency officers who seized Meng Wanzhou's phones, laptop and tablet when she arrived at Vancouver's airport in December 2018 later mistakenly gave the phone passcodes to the RCMP.
Lawyers for Canada's attorney general admitted the error in B.C. Supreme Court on Tuesday as they tried to shoot down a theory that the CBSA and RCMP had conspired to violate the Huawei chief financial officer's rights at the time of her arrest.
Meng's lawyers claim the agencies acted at the behest of the RCMP to conduct a "covert criminal investigation" against their client.
But Crown lawyer Diba Majzub told B.C. Supreme Court Associate Chief Justice Heather Holmes that one error doesn't prove a larger conspiracy.
"When we consider this part of the process, and the fact that there was an error — that has to be looked at in the entire context," said Majzub.
"The fact of an error in the process is not an air of reality that the process was a sham."
Accused of violating U.S. sanctions
The Crown has spent the past two days refuting the defence allegation that Meng was the victim of an abuse of process when she was screened and questioned by CBSA officers before being officially arrested on an extradition warrant.
American prosecutors want the 47-year-old sent to the U.S. to stand trial for allegedly violating U.S. sanctions against Iran by lying to banks about Huawei's control of a hidden subsidiary.
CBSA officers asked Meng Wanzhou 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)
The company — which Huawei claimed was a "local partner" in Tehran — was accused of attempting to sell American telecommunications equipment in violation of the U.S. regulations.
Prosecutors claim Meng's alleged misrepresentations placed financial institutions at risk of breaking the law.
Meng is living under house arrest in a multimillion dollar home on Vancouver's West Side; she has denied the allegations.
Law allows CBSA to seize and search phones
Meng's extradition hearing is set to begin in January 2020, but this week her lawyers are trying to convince Holmes to issue an order for records to bolster their abuse of process claim.
The Crown has said the CBSA and RCMP acted appropriately, making sure that Meng was screened for admissibility before she was arrested.
CBSA officers seized Meng Wanzhou's laptop along with her phones and other electronic devices. Crown lawyers claim they were within their rights to do so. (B.C. Supreme Court)
Majzub argued that the law allows border officers to take phones from travellers, ask them for the passcodes and even to search them — all in the name of deciding if someone should be allowed into the country.
He said CBSA officers had legitimate reason to question Meng and to take her electronic devices because of the existence of fraud allegations which suggested she might be ineligible because of serious criminality.
Majzub said the law allows CBSA officers to search all "goods" crossing the border with travellers — and that the definition of "goods" includes cellphones.
'They did not access the devices'
Meng was carrying an iPhone 7 Plus, an IPad Pro, a Macbook Air and a Huawei Mate 20 phone when CBSA officers met her on the jetway after she landed in Vancouver on arrival from Hong Kong.
According to the defence, the FBI had asked that the devices be immediately seized and placed in special bags designed to ensure that their contents could not be remotely wiped.
Meng Wanzhou is flanked by security guards as she heads to B.C. Supreme Court in Vancouver. The terms of her bail require 24/7 monitoring. (Darryl Dyck/Canadian Press)
The CBSA officers who took the phones also compelled Meng to give them the passcodes.
The Crown lawyers claim the devices have never been searched, but were passed to police by mistake.
In an email included in an affidavit filed with the court, Vancouver airport CBSA chief of passenger operations Nicole Goodman said she wrote to the RCMP after learning of the error.
"I advised the RCMP the passcodes should not have been provided by CBSA as the passcodes were CBSA information obtained during the CBSA examination, and that the passcodes could not be used to access the devices nor shared with a third party (ie. other law enforcement agency)," Goodman wrote.
"The RCMP confirmed they did not access the devices, and do not intend to access the devices at any time as it was not their investigation."
'Not a deliberate action'
In order to reach a decision, Holmes has to decide whether there is an "air of reality" to the theory the defence has put forward — not whether a conspiracy actually exists.
Holmes asked Majzub what he had to say about the fact the passcodes were passed between the agencies.
He asked her to consider the extraordinary powers of the CBSA and their duties to screen passengers thoroughly, suggesting that any mistake considered out of context can be misleading.
"When Your Ladyship does that, the result should be the conclusion that that was not a deliberate action but an error," Mazjub said.
Meng has attended the proceedings in person, walking past a phalanx of cameras daily as she leaves her home to head to the downtown courthouse each morning.
According to the court documents, Meng owns homes in both Hong Kong, where protestors have been marching against authoritarian rule and in Shenzhen in Mainland China, where Huawei has its headquarters.
As China marked the 70th anniversary of Communist rule with a show of force, Meng wore a Chinese flag pin on a long red dress which hung just above the ankle monitor she wears as part of her release.
The court proceedings are expected to last all week.
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VANCOUVER — Huawei executive Meng Wanzhou was back in court Monday to hear lawyers for Canada’s attorney general argue that there was nothing illegal about her arrest at Vancouver’s airport at the behest of American officials.
Crown lawyer Robert Frater accused the defence of fishing for evidence that does not exist, characterizing the efforts of Meng’s lawyers as the kind of technique usually “found in the tackle box of someone on a fishing expedition.”
Huawei chief financial officer Meng Wanzhou, who is out on bail and remains under partial house arrest after she was detained last year at the behest of American authorities, leaves her home to attend a court hearing in Vancouver, on Monday, Sept. 30, 2019. (DARRYL DYCK / The Canadian Press)
For Day 4 in what is expected to be an eight-day disclosure hearing, Meng wore a white dress suit and a pair of sparkly heels. As has been the case throughout the hearing, she sat with her lawyers in the courtroom and took notes as her translator relayed the attorney general’s arguments. She periodically donned a black peacoat in the chilly courtroom.
B.C. Supreme Court Associate Chief Justice Heather Holmes is considering whether the Canadian government should provide Meng’s defence lawyers with more evidence to help them prepare for trial — which could see Meng extradited to the United States to face charges of fraud and violating sanctions against Iran.
The whole process could take a decade, according to extradition experts.
Huawei and Meng have denied the allegations, none of which have been proven in court. Meng is currently out on bail, under partial house arrest, in Vancouver.
Meng, the daughter of Huawei’s founder, was arrested Dec. 1 at Vancouver’s international airport, triggering a diplomatic headache for Canada.
Lawyers for Canada’s attorney general say they have already gone above and beyond in providing much of the material, or disclosure, that the defence has requested. The Crown has been releasing documents like officer notes and the arrest warrant for Meng, since early this year, said Frater.
But the defence added a few more requests to their wish list last week, including a request for emails between FBI and Canadian authorities in the days leading up to Meng’s arrest.
Frater said the Crown had to “draw the line” somewhere.
He said that so far, none of the documents released have shown anything other than “innocuous” and “pedestrian” behaviour from RCMP or officers with the Canadian Border Services Agency (CBSA).
Frater said Meng’s lawyers were simply “annoyed” because “none of this substantiates their theory” that there was a “covert criminal investigation” or a “covert cover up.”
Article Continued Below
One of the defence team’s main assertions is that Meng should have been arrested right away — and therefore given the constitutionally protected right to silence and right to a lawyer without delay — instead of being first questioned under what the defence alleges was the guise of an immigration check.
Huawei chief financial officer Meng Wanzhou, who is out on bail and remains under partial house arrest after she was detained last year at the behest of American authorities, leaves her home to attend a court hearing in Vancouver, on Monday, Sept. 30, 2019. (The Canadian Press)
Meng’s lawyers say her charter rights were violated, as there was a three-hour delay between her stepping off the plane and her arrest. During that time, her electronic devices were seized and she was questioned by Canadian border officials.
Frater acknowledged that CBSA agents took Meng’s electronic devices when she stepped off the plane on Dec. 1, but said that this did not demonstrate any prejudice against Meng. In fact, the Crown has been trying to give the devices back to Meng for the past two months, Frater told the court Monday.
During the disclosure hearing, the defence team’s goal is to show the judge there is an “air of reality” to their argument — in other words, that it is reasonable to think that Canadian law-enforcement officials may have violated Meng’s charter rights when they questioned and then arrested her.
Justice Holmes interrupted Frater often on Monday, challenging him on the various legal and factual arguments he made.
At one point, Frater was about to detail what he believed Meng’s so called “dream team” of lawyers had achieved so far in the hearing when Holmes cut him off to say she would rather hear about the law.
Then court adjourned for lunch.
After lunch, Crown lawyer Diba Majzub spent the remainder of the day going through custom and immigration law in order to prove that the border officers had a legitimate reason to question Meng prior to her arrest — in other words, that her entry into Canada was not a “forgone conclusion” as defence lawyers argued last week.
Majzub pointed out that foreign nationals are not admissible to Canada if they commit a serious crime, even if that major crime is committed outside of Canada.
Everyone, including citizens and foreigners, are examined before being allowing entry into Canada, he said.
“Why would Ms. Meng be different from anyone else?”
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Canada Border Services Agency officers who seized Meng Wanzhou's phones, laptop and tablet when she arrived at Vancouver's airport in December 2018 later mistakenly gave the phone passcodes to the RCMP.
Lawyers for Canada's attorney general admitted the error in B.C. Supreme Court on Tuesday as they tried to shoot down a theory that the CBSA and RCMP had conspired to violate the Huawei chief financial officer's rights at the time of her arrest.
Meng's lawyers claim the agencies acted at the behest of the RCMP to conduct a "covert criminal investigation" against their client.
But Crown lawyer Diba Majzub told B.C. Supreme Court Associate Chief Justice Heather Holmes that one error doesn't prove a larger conspiracy.
"When we consider this part of the process, and the fact that there was an error — that has to be looked at in the entire context," said Majzub.
"The fact of an error in the process is not an air of reality that the process was a sham."
Accused of violating U.S. sanctions
The Crown has spent the past two days refuting the defence allegation that Meng was the victim of an abuse of process when she was screened and questioned by CBSA officers before being officially arrested on an extradition warrant.
American prosecutors want the 47-year-old sent to the U.S. to stand trial for allegedly violating U.S. sanctions against Iran by lying to banks about Huawei's control of a hidden subsidiary.
CBSA officers asked Meng Wanzhou 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)
The company — which Huawei claimed was a "local partner" in Tehran — was accused of attempting to sell American telecommunications equipment in violation of the U.S. regulations.
Prosecutors claim Meng's alleged misrepresentations placed financial institutions at risk of breaking the law.
Meng is living under house arrest in a multimillion dollar home on Vancouver's West Side; she has denied the allegations.
Law allows CBSA to seize and search phones
Meng's extradition hearing is set to begin in January 2020, but this week her lawyers are trying to convince Holmes to issue an order for records to bolster their abuse of process claim.
The Crown has said the CBSA and RCMP acted appropriately, making sure that Meng was screened for admissibility before she was arrested.
CBSA officers seized Meng Wanzhou's laptop along with her phones and other electronic devices. Crown lawyers claim they were within their rights to do so. (B.C. Supreme Court)
Majzub argued that the law allows border officers to take phones from travellers, ask them for the passcodes and even to search them — all in the name of deciding if someone should be allowed into the country.
He said CBSA officers had legitimate reason to question Meng and to take her electronic devices because of the existence of fraud allegations which suggested she might be ineligible because of serious criminality.
Majzub said the law allows CBSA officers to search all "goods" crossing the border with travellers — and that the definition of "goods" includes cellphones.
'They did not access the devices'
Meng was carrying an iPhone 7 Plus, an IPad Pro, a Macbook Air and a Huawei Mate 20 phone when CBSA officers met her on the jetway after she landed in Vancouver on arrival from Hong Kong.
According to the defence, the FBI had asked that the devices be immediately seized and placed in special bags designed to ensure that their contents could not be remotely wiped.
Meng Wanzhou is flanked by security guards as she heads to B.C. Supreme Court in Vancouver. The terms of her bail require 24/7 monitoring. (Darryl Dyck/Canadian Press)
The CBSA officers who took the phones also compelled Meng to give them the passcodes.
The Crown lawyers claim the devices have never been searched, but were passed to police by mistake.
In an email included in an affidavit filed with the court, Vancouver airport CBSA chief of passenger operations Nicole Goodman said she wrote to the RCMP after learning of the error.
"I advised the RCMP the passcodes should not have been provided by CBSA as the passcodes were CBSA information obtained during the CBSA examination, and that the passcodes could not be used to access the devices nor shared with a third party (ie. other law enforcement agency)," Goodman wrote.
"The RCMP confirmed they did not access the devices, and do not intend to access the devices at any time as it was not their investigation."
'Not a deliberate action'
In order to reach a decision, Holmes has to decide whether there is an "air of reality" to the theory the defence has put forward — not whether a conspiracy actually exists.
Holmes asked Majzub what he had to say about the fact the passcodes were passed between the agencies.
He asked her to consider the extraordinary powers of the CBSA and their duties to screen passengers thoroughly, suggesting that any mistake considered out of context can be misleading.
"When Your Ladyship does that, the result should be the conclusion that that was not a deliberate action but an error," Mazjub said.
Meng has attended the proceedings in person, walking past a phalanx of cameras daily as she leaves her home to head to the downtown courthouse each morning.
According to the court documents, Meng owns homes in both Hong Kong, where protestors have been marching against authoritarian rule and in Shenzhen in Mainland China, where Huawei has its headquarters.
As China marked the 70th anniversary of Communist rule with a show of force, Meng wore a Chinese flag pin on a long red dress which hung just above the ankle monitor she wears as part of her release.
The court proceedings are expected to last all week.
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加拿大得救了。
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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.
