A Canadian judge on Wednesday expressed scepticism over government lawyers' resistance to Meng Wanzhou's efforts to obtain more documents about her treatment in the hours before her arrest at the Vancouver airport on December 1.
Justice Heather Holmes said the crown lawyers' reliance on an "absence of inferences" to push back against the Huawei executive's claims that her rights had been abused were "unhelpful" when in some instances these absences "could be easily filled".
Government lawyers denied that delaying the arrest was abusive, rejecting the claim by Meng's lawyers that the three-hour time period, during which she was searched and questioned, defied a court order that she be arrested "immediately".
John Gibb-Carsley, one of the Canadian crown lawyers representing the US in the hearing, said that exercising the police powers of arrest required "discretion" and judgment, as he criticised the "narrative of abuse" of Meng's Canadian constitutional rights being made by her lawyers.
Meng's treatment by Canadian border officers in the hours after she arrived from Hong Kong on December 1, but before she was arrested by police acting on a US warrant, has been the focus of an eight-day hearing in British Columbia's Supreme Court, where her lawyers are seeking a court order that Canadian authorities hand over more documents about her handling.
The US wants Meng to face trial for allegedly defrauding HSBC by misleading the bank about Huawei's business dealings in Iran.
Gibb-Carsley cited a 2009 case in which a Royal Canadian Mounted Police officer interrupted a deposition by a suspect to arrest him, a decision that was condemned in a court ruling. Gibb-Carsley said that although a border examination was not exactly analogous, "in this [previous] case the court found that the officer did not exercise discretion" in delaying the "immediate" arrest of the suspect.
Gibb-Carsley said there was no conspiracy involved in the Canada Border Services Agency searching Meng before her arrest.
"There is no evidence that the FBI asked the CBSA to go first," he said, or that the FBI asked the RCMP to have the CBSA "go first".
"The fact the provisional arrest warrant was delayed ... cannot support their accusations [of a conspiracy]," he said.
The US request for Canada to grant a provisional arrest warrant against Meng had asked that her electronic devices be secured, said Gibb-Carsley. But this was to be done within the laws of Canada, he said.
"There is no allegation that any of these devices was searched," Gibb-Carsley added, agreeing with Holmes' characterisation of his argument that "this was a search incidental to arrest".
Asked Holmes: "What was in the minds of the CBSA officers? I have to ask: why then the Mylar bags, that are clearly associated with the [US extradition] treaty request?"
That was a reference to the anti-tampering bags that were intended to prevent the devices being remotely wiped, and which the US request for Meng's arrest had mentioned.
Gibb-Carsley said the CBSA officers were within their rights to seize the phones and had a "legitimate purpose" to bag them.
"There is no evidence that the [devices'] passcodes were requested by the RCMP ... there is evidence that the passcodes were given [to the RCMP] in error," he said, referring to an email from CBSA official Nicole Goodman asserting this. The passcodes were "never used" he said, something that was supported by a forensic report prepared by Meng's lawyers.
Meng Wanzhou's Huawei Mate 20 Pro phone, which was confiscated by Canadian border agents on December 1. Photo: British Columbia Supreme Court alt=Meng Wanzhou's Huawei Mate 20 Pro phone, which was confiscated by Canadian border agents on December 1. Photo: British Columbia Supreme Court
"They were never requested, they were provided in error, they were never used, they never will be used," he said.
But Holmes said she had "some difficulty" with Gibb-Carsley's submission that the passcodes "were not requested. I'm not sure we can take that as a fact".
"And then we have 'the error' as described by Ms Goodman," Holmes said.
Reliance by the crown lawyers on the "absence of inferences" about the case were "unhelpful", said Holmes, when in some instances these absences "could be easily filled".
But Gibb-Carsley said that among "the constellation of evidence", the transfer of the passcodes was the only fact on which Meng's lawyers had based their claims of a conspiracy.
"Notes do not exist of plots that do not occur," he said, referring to supposed gaps in note-taking by officers who dealt with Meng's case.
Gibb-Carsley referred to notes by RCMP Sergeant Peter Lea, dated December 4, recording a discussion with John Srgoi "who we understand is FBI".
Although Sgroi asked for an imaged copy of Meng's devices, Lea questioned whether this would require a request under the US-Canada mutual legal assistance treaty. The notes showed the RCMP was acting independently of the FBI, said Gibb-Carsley.
Handwritten notes by Royal Canadian Mounted Police Sergeant Peter Lea regarding Meng Wanzhou. Photo: British Columbia Supreme Court alt=Handwritten notes by Royal Canadian Mounted Police Sergeant Peter Lea regarding Meng Wanzhou. Photo: British Columbia Supreme Court
"My friends have been provided with an extraordinary amount of disclosure in this case," said Gibb-Carsley. But the narrative of a "grand" conspiracy against Meng was unsupported, he said.
"Never let the truth get in the way of a good story," he said.
The hearing is due to continue all week. Meng's formal extradition hearing is scheduled to begin in January and last until October or November 2020.
Meng's arrest at the request of the US triggered outrage from Beijing amid the US-China trade war. Her arrest also sent China-Canada relations into a tailspin. Two Canadians, Michael Spavor and Michael Kovrig, have been charged with espionage in China in a move widely seen in Canada as retribution for Meng's detention.
Lawyers for Meng, 47, said last week that Canadian border officers conducted an illegitimate "covert criminal investigation" into her when she arrived at the airport, seizing her electronic devices and forcing her to hand over their passwords at the behest of the US FBI.
Huawei chief financial officer Meng Wanzhou leaves her home to attend a court hearing in Vancouver on Wednesday. Photo: The Canadian Press via AP alt=Huawei chief financial officer Meng Wanzhou leaves her home to attend a court hearing in Vancouver on Wednesday. Photo: The Canadian Press via AP
Canadian crown lawyers have said Meng's treatment was a normal immigration procedure and "not at all sinister", calling the pursuit of more documents a "fishing expedition".
But a number of new documents have been released by the Canadian side during the hearing. On Tuesday, these included an email in which a CBSA employee said the transfer of Meng's electronic passwords from border agents to police had been done by mistake.
Her lawyers depict the transfer as evidence that the border officers were conducting a proxy investigation on behalf of the FBI and the Royal Canadian Mounted Police. The three-hour delay between Meng's arrival in Canada and being arrested was in defiance of a court order that Meng be arrested "immediately", her lawyers say.
Meng, Huawei's chief financial officer and the daughter of company founder Ren Zhengfei, was dressed in a long black lace dress on Tuesday. She was arrested on a stopover on her way from Hong Kong to Mexico.
Once a Canadian permanent resident, she is currently free on C$10 million (US$7.5 million) bail, living in a C$13 million home that is one of two properties she owns in Vancouver.
After Meng's lawyers said they needed Wednesday afternoon to review the situation before replying, the hearing was adjourned until Thursday morning.
This article originally appeared in the South China Morning Post (SCMP), the most authoritative voice reporting on China and Asia for more than a century. For more SCMP stories, please explore the SCMP app or visit the SCMP's Facebook and Twitter pages. Copyright © 2019 South China Morning Post Publishers Ltd. All rights reserved.
Copyright (c) 2019. South China Morning Post Publishers Ltd. All rights reserved.