By Canadian Press

‘No need’ for lengthy border exam of Meng Wanzhou before her arrest: defence

Sep 27, 2019 | 12:54 PM

VANCOUVER — The defence team for a Huawei executive whose arrest at Vancouver’s airport sparked a diplomatic crisis between Canada and China says there was no good reason for border officials to detain her for almost three hours before her arrest. 

Scott Fenton, a defence lawyer for Meng Wanzhou, told B.C. Supreme Court Wednesday that border officials already knew Meng was facing charges in the United States by the time she got off her flight from Hong Kong.

That means officials also knew that she would be arrested and taken before the courts, that they had no power to remove her and that they could already report her as inadmissible because of the allegations she faces in the United States, he said.

Instead, documents show Meng was held for three hours and a border official questioned her about her business in Iran before she was informed of her arrest and read her rights.

“There was no need for this lengthy examination of the applicant,” Fenton told the court.

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He argued the provisional arrest warrant calling for her “immediate” arrest should have taken precedence over a customs and immigration examination.

Meng was arrested Dec. 1, 2018, at the request of the United States, which is seeking her extradition on fraud charges. The U.S. alleges that Meng misrepresented facts to HSBC regarding Huawei’s business dealings in Iran, which put the bank at risk of prosecution for violating sanctions against the country.

Both Meng and Chinese tech giant Huawei have denied any wrongdoing and none of the allegations have been tested in court.

Meng’s legal team asked the court this week for further documentation to support its argument that her arrest at Vancouver’s airport was unlawful ahead of her extradition trial, which is scheduled to begin in January.

They narrowed their petition Wednesday at the request of Associate Chief Justice Heather Holmes, submitting a list of information that includes documents and phone calls from border services and RCMP officers who met on Nov. 30, the night before Meng’s arrest.

Fenton has said the defence team must convince Holmes that there is an “air of reality” to its allegations, including that Meng was the subject of an abuse of process, in order to compel further disclosure from the Crown.

Canada’s attorney general will begin presenting its response in court Monday. But in accepting the narrowed request, Crown attorney Robert Frater told Holmes they have already been very co-operative in providing requested materials to the defence including notes related to the Nov. 30 meeting.

“They’ve already got, in our position, what there is from that meeting. And now they’re asking you to order that if there’s anything else, we should produce that too,” Frater said.

“We’re happy to receive (the more specific request), we think we can respond to it, but ultimately we may be saying to your ladyship that it’s not really helpful to you in deciding whether the legal standard has been met,” Frater said Wednesday.

Documents show the Crown will argue next week that Canadian officials followed the law when they detained Meng and the defence has no proof to substantiate its “conspiracy theory” that she was illegally arrested.

There’s no evidence to suggest that the RCMP or the Federal Bureau of Investigation in the United States asked border agents to elicit information from Meng while she was being detained, the Crown documents say.

On Wednesday, Fenton said border official recorded the passwords to her phones and relayed them to RCMP along with her electronic devices. It’s evidence that supports the defence allegation that border officers conducted a “covert criminal investigation” under the guise of a routine border check, he said.

“There’s strong evidence that supports the air of reality that Ms. Meng was tricked. And she was both unlawfully and unfairly deprived of her constitutional rights,” he told the court. 

Meng’s lawyers also argue that the Canada Border Services Agency and RCMP officials made “strategic omissions” in notes they took about the arrest and plan for arrest.

One border officer, who swore in a solemn declaration that he asked Meng whether her company does business in Iran, did not record any notes in the seven hours leading up to the immigration examination that would indicate why it occurred the way it did, Fenton said.

“His solemn declaration and very limited notes similarly make no mention of the arrest warrant and appeared to promote what we respectfully submit is a ‘plausible facade’ that they were actually carrying out a secondary examination,” he said.

Another border official recorded in his notes that a third official “made the decision” that he would escort Meng to the secondary screening area, even though that decision had already allegedly been made by the border agency and RCMP, Fenton argued.

Meng, who is the chief financial officer of Huawei and the daughter of the company’s founder, is free on bail and living in Vancouver.

This report from The Canadian Press was first published on Sept. 25, 2019.

Amy Smart, The Canadian Press