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Meng Wanzhou could be one step closer to freedom

Court docs from Canadian authorities already show possible violations of Meng’s Charter rights. The judge approved more disclosure that could corroborate.
Graeme Gordon Montreal, QC

Chinese Huawei executive Meng Wanzhou may be one step closer to freedom from her ankle bracelet and house arrest in her Vancouver mansion now that a B.C. judge approved her lawyers’ application this week for more documents to be released, which could potentially reveal more coordination between Canadian and American authorities in the lead up to her arrest on Dec. 1 of 2018.

“When you drill down, the defence is saying, ‘You are not disclosing everything to us. We think that you knew about Meng Wanzhou was coming to Canada… and the US intelligence agencies, commercial agencies knew she was coming, so you cooked something up to sucker punch her,” Christopher Hicks, Toronto criminal lawyer and founding partner of Hicks Adams LLP who’s not involved in Meng’s case, said to The Post Millennial.

“They’re asking for a whole bunch of material. If it really does exist, and they’re going to get their hands on it, it could be explosive.”

Meng, whose father founded the Shenzhen-based company, was first arrested from the extradition request of the US authorities who are accusing her of fraud, breaking the rules of sanctions against Iran.

The Globe and Mail published a lengthy article, on the eve of the one-year anniversary of Meng’s arrest, which included Canadian and American sources claiming the plan to arrest Meng came together very last minute, with only a day’s notice given to Canadian authorities that the US wanted her arrested when her flight landed in Canada.

This narrative of very short notice, Hicks says, could crumble depending on what is found in the new documents Meng’s counsel has forced the authorities involved to produce, including the Canada Border Services Agency (CBSA) and RCMP.

The Globe and Mail article also paraphrased part of an interview with Scott Kennedy, China expert of Washington-based Center for Strategic and International Studies, who told the newspaper there were three ways this international fracas between the two most powerful nations in the world could be resolved: “Canadian courts could say the U.S. has not provided proof to warrant an extradition, and set her free; Huawei can negotiate a plea deal with the U.S. Justice Department that leads to a withdrawal of the extradition request; or a deal between Mr. Trump and Mr. Xi could lead to her freedom.”

But legal experts such as Hicks, as well as Meng’s own all-star legal counsel, would argue there’s a fourth alternative that’s a distinct possibility. If Meng’s Charter rights are found to have been violated in the three hours she was detained before being arrested, she could be set free and the evidence gathered from her electronics found inadmissible.

In affidavits and notes from RCMP and CBSA officers already in the court record, and obtained by The Post Millennial, there are several parts of the execution of the arrest of Meng that the defence alleges the Canadian authorities failed in their duty to perform due process.

The first point of contention is that the CBSA did not tell Meng her rights when they detained her (which Meng’s lawyers’ are arguing was under false pretense) for a customs inspection.

“Never mind if you’re under arrest, if you’re a suspect, and the police are talking to you, they have to tell you that you have your rights,” said Hicks.

“You’re supposed to arrest someone, not sucker them into making statements, or handing over their electronic information.”

RCMP officers’ notes show the initial plan to arrest Meng would have involved an RCMP officer arresting her on the plane as soon as it landed at Vancouver International Airport.

On the morning of Dec. 1, the day of the arrest, the RCMP and CBSA devised a new, revised plan, in which Meng would first be detained by the CBSA.

Her lawyers assert this last-minute new plan ended up violating the court order in the warrant, which called for Wanzhou’s “immediate arrest” upon arriving in Canada.

Affidavits and notes from Canadian authorities also reveal that during that detention period CBSA officers gathered evidence, including Meng’s and her business associates electronics, which they then passed along to the RCMP who were working on behalf of US authorities instructions. The RCMP also provided mylar bags–special foil bags to preserve the contents of electronics from intercepting signals of remote devices that are capable of wiping or altering the contents–to the CBSA.

The CBSA also compelled Meng to provide her password to her phones and then passed this information along to the RCMP. According to documents authorities’ communications before the court, Meng was arrested seven minutes later by the RCMP after giving her password to the CBSA officers, who didn’t look at the contents of her electronic devices for their customs inspection, but instead retrieved them for other means.

During the September court hearing a Crown Prosecutor admitted it was a “mistake” by the CBSA officers to share the password with the RCMP.

The court documents also reveal that the CBSA withheld her luggage despite their being no customs violations found because the officers were coordinating with the RCMP who went up the chain of command to the Canadian Department of Justice to see if the FBI wanted the luggage.

The defence also argues that Meng repeatedly asked why she was being detained by the CBSA but wasn’t given the real reason behind the supposed routine custom inspection or told her Charter rights.

Meng’s defence team also asserts the officers’ affidavits are leaving out key, unfavourable information, which led to the latest court application for further documnetation being approved by the judge.

“So the arrest warrant was for an immediate arrest,” Richard Kurland, a lawyer and federal policy analyst not involved in the case, said to the Vancouver Courrier in October. “Immediate means immediate means immediate. It doesn’t mean after she gets off the plane. It doesn’t mean after she collects her luggage. It doesn’t mean after her customs examination, and it doesn’t mean after several hours of questioning. That’s not immediate.”

Former Liberal deputy prime minister John Manley recently said in an interview that Canada should have avoided detaining Meng through “creative incompetence” by purposefully bungling detaining her, letting her slip away to her destination in Mexico.

In light of the evidence presented thus far in the court, and more possible records of coordination between Canada and US authorities being revealed in the near future, the intended or unintended bungling of the arrest of Meng could ultimately be what gets Canada out of its current predicament with China; a predicament that has thus far led to stiff trade sanctions against Canadian farmers and the retaliatory arrests of former diplomat Michael Kovrig and entrepreneur Michael Spavor, still stuck in harsh conditions in Chinese prison cells.

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Graeme Gordon
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