In the week straddling October and November, COVID-19 horrified us, the U.S. election mesmerized us and the Azerbaijan/Armenian conflict saddened us. In the midst of these global spectacles, Ms. Meng Wanzhou contested her extradition to the U.S. in a Vancouver courtroom in a case that involves an abuse of power by an American president and which has become an embarrassment to the Canadian justice system.
At the core of the issue is the rule of law. Was Meng afforded due process?
Increasingly, the conflicting testimony and evidence provided by law enforcement personnel leave the impression they were pressured into arresting Meng, in violation of her Canadian Charter rights.
Ironically, both the U.S. and Canada are strident critics of countries that don’t follow the rule of law.
This is a world in which Donald Trump has played coy about obeying the will of America’s democratic system; where U.S. political, economic and security interests are all about unilateral benefit. It’s a world where pestilence, famine, chaos and armed conflict are rising; where moral and ethical principles and the rule of law, which should protect all, have seemingly been abandoned in favor of transactional politics.
Meng is currently the central player in a Kafkaesque farce, where those who accused and arrested her have given conflicting sworn accounts. The contradictions cast a shadow on the sufficiency of the arrest warrant and raise questions about whether Meng’s Charter rights were violated by a ruse — a fishing expedition to seize her phone and laptop.
In Canada, as in the United States, the law requires that an arrest warrant be signed by a judge based on the sworn statement of a law enforcement officer. The judge must assume that the sworn statement is true and correct in terms of the facts alleged and the laws violated. Law enforcement officers know that they imperil themselves, the case and the system, if they fail to strictly follow the law.
Upon cross-examination by Meng’s legal team, the Royal Canadian Mounted Police officer who had been in charge admitted that he did not verify the information contained in the sworn affidavit that formed the basis for Meng’s arrest. Specifically, he omitted the fact that the Mounted Police and the Canada Border Services Agency had communicated extensively on the planned arrest, in what appears to be an illegal hunt for incriminating data from Meng’s cellphone, laptop and iPad on behalf of the U.S. Federal Bureau of Investigation. This is the same FBI that had been turned down by nine countries as it sought to seize Meng.
According to a South China Morning Post article on Sept. 26, 2020, at the first evidentiary hearing:
“Said Ms. Meng’s lawyer Fenton: ‘The actions the CBSA undertook in searching and releasing the applicant show that [the arrest warrant] took precedence … [T]he CBSA suspended its examination at 2:11 pm and the first thing they did was give away [to the RCMP] the electronics and passwords they obtained.’”
The lawyer asked rhetorically why this would occur if the seizure was part of a bona fide immigration examination. The seizure, instead, “was ultimately for the benefit of the FBI,” he said.
Fenton also said there were indications of an attempt by the CBSA to “recast the events after the fact.” He pointed to “troubling” handwritten notes of a CBSA meeting that said: “Don’t suggest at any point that RCMP was leader” and “explain that surrendering phone request is normal, she did this voluntarily.”
He said the undated notes, taken by an unidentified person at the CBSA, were likely made sometime in December 2018.
An in depth report after the second hearing by CNBC News, dated Oct. 29, 2020, was headlined, “Judge rules new evidence allowed.”
Meng is charged with fraud and conspiracy in the United States in relation to allegations that she lied to HSBC bank about Huawei’s relationship with a hidden subsidiary that was accused of violating U.S. economic sanctions against Iran.
Prosecutors claim that by lying to HSBC to continue a financial relationship, Meng placed the bank at risk of loss and prosecution for breaching the same sanctions.
The U.S. claims that Meng lied to an HSBC banker in a PowerPoint presentation describing Huawei’s relationship with a subsidiary accused of violating U.S. sanctions against Iran. (Chan Long Hei/Bloomberg)
As part of the extradition process, the United States provided a record of the case that included slides from the PowerPoint, which Meng gave to an HSBC executive in Hong Kong in August 2013.
But Meng's lawyers claim the U.S. deliberately omitted two slides from the PowerPoint showing that Meng did not mislead the bank.
And they also claim that where the U.S. said only “junior” employees knew about the real relationship between Huawei and its subsidiary, senior executives at the bank were also aware.
In her ruling, Judge Holmes said she would allow two statements from the missing slides to be included as evidence in the extradition case. She also agreed to allow evidence about HSBC’s management structure to help determine who is junior and who is not.
Holmes released her decision even as Meng’s lawyers were in court gathering evidence related to the second line of argument that there was an abuse of process — the claim that her rights were violated at the time of her arrest.
Meng, who had just arrived at the Vancouver airport on a flight from Hong Kong, was questioned by CBSA officers for three hours before she was arrested on Dec. 1, 2018. The defense team claims the CBSA and Royal Canadian Mounted Police conspired with the U.S. Federal Bureau of Investigation to conduct a covert criminal investigation into Meng by using the border agency’s extraordinary powers to question her without a lawyer.
Border services officer Scott Kirkland, the CBSA agent who seized Meng’s phones, was on the stand recently for his second day of testimony under oath. He testified that he believed there were grounds to question Meng about the possibility she might be involved in espionage because the CBSA’s internal system had flagged her for “national security” reasons. But he admitted later under cross-examination that this might not have been the case. Meng’s lawyer suggested that she was only targeted because of the criminal charges.
Kirkland also said he thought the police should have arrested Meng immediately, before the CBSA carried out its inquiries, because he worried about the impact a delay might have on her right to obtain legal counsel. He said he knew the high profile case would end up in court, but he said he didn’t raise the issue of possible violations of Meng’s Charter rights out loud. He said no other RCMP or CBSA officers present said the word “charter.”
Two weeks have been set aside in February for arguments about the record of the case and the alleged violation of Meng’s rights at the time of her arrest.
The third defense claim relates to allegations that U.S. President Donald Trump politicized the case by threatening to use Meng as a bargaining chip to get a better trade deal with China. Judge Holmes noted in her ruling that if any one of those lines of argument were proved, they might not be enough alone to derail the case, but the cumulative effect of all of them might bring a stay.
Meng has denied the allegations against her.
Deceptions, omissions, conspiracy, Charter violations, political intrigue. What should happen next?
In light of multiple factors — Meng’s due process rights, contradictions in testimony by law enforcement officers, indications of collusion and political influence — Judge Holmes will have to rule not only on alleged violations of Meng’s rights but also the integrity of the system which brought this case forward. If the case is dismissed, it would be a stunning rebuke of both American and Canadian law enforcement. And while it could be appealed, the government will hopefully realize that letting this case fade away would be in the best interest of all concerned.
The coming change in the U.S. presidency, the bungled seizure of Meng and relations between Canada and China indicate clearly that this case should never have been brought. The best resolution is a dismissal for cause.
It seems that in the case against Meng, the rule of law was applied selectively, as something to be preached but not practiced — or even worse, something to be violated.