Canadian prosecutors also noted the judge in the case must presume “good faith” on the part of the United States in its bid to extradite Huawei CFO Meng Wanzhou to face fraud charges in New York.
VANCOUVER, British Columbia (CN) — Canadian prosecutors in Huawei CFO Meng Wanzhou’s extradition case fired back at her defense team’s claims of improper conduct on the part of both U.S. and Canadian authorities, telling a B.C. Supreme Court judge that the Americans behaved lawfully and appropriately as an “honorable” treaty partner every step of the way since her arrest in December 2018.
Prosecutor Robert Frater told Associate Chief Justice Heather Holmes that she was tasked with deciding between “two starkly different narratives.”
“One is an exciting narrative — [it] involves the covert criminal investigation, witnesses lying on an almost industrial scale, and a cross-border coverup,” Frater told the judge “The other narrative is more prosaic: includes two sets of public officials going about their required tasks in circumstances where there was no playbook for determining who should perform their task first … I would ask you not to lose your focus on the law.”
Frater urged Holmes to keep “front and center” the legal test for finding an abuse of process as found in Canadian case law, outlining five key questions raised about law enforcement conduct in the lead-up and aftermath of Meng’s arrest. Did the U.S. request a “covert criminal investigation and participate in coverup?” Did Canadian police and border guards agree to that request? Did the Royal Canadian Mounted Police and the border protection agency’s jurisdictional wrangling on the day of the arrest, and the conduct of either agency, prejudice Meng’s rights? Or was information shared improperly between Canadian and American authorities?
The defense had “failed to establish the necessary prejudice under any of these five” that would lead to a stay of the extradition bid, Frater said.
But he did concede that an affidavit provided by retired RCMP staff sergeant Ben Chang, who refused to testify on advice of independent counsel, could not be relied upon for the truth since the defense has no opportunity to cross-examine the officer, now employed in Macau, which has no treaty with Canada for legal cooperation. The defense, though, took no steps to secure Chang’s testimony with a subpoena, Frater said.
The Crown’s arguments come during three weeks of proceedings into abuse of process allegations brought by Meng against Canadian authorities related to her detention, questioning and eventual arrest at Vancouver Airport in December 2018. Meng faces fraud charges in New York, where U.S. prosecutors accuse her of misleading an HSBC bank executive at a meeting in Hong Kong in 2013 by misrepresenting Huawei’s dealings in Iran through a subsidiary — which would be a violation of U.S. sanctions.
Prosecutor Diba Majzub told Judge Holmes that there was no evidence of a “U.S.-led covert criminal investigation” as Meng claims.
“In fact, we say the evidence shows the opposite, that the U.S. behaved lawfully and appropriately,” Majzub said. “RCMP and the CBSA did not decide their sequence of processes at the airport to advance a conspiracy. That decision was made based on the unique port of entry context … The CBSA had bona fide admissibility concerns about the applicant Ms. Meng and the steps they took were in the fulfillment of their border security mandate.”
Majzub also called out the defense team’s claims of a conspiracy by another name, characterized by Meng’s lawyers as a “coordinated covert criminal investigation.”
“We say it doesn’t matter what we call it. The allegation amounts to the same thing, that the U.S. led a plan to do something unlawful,” Majzub said, adding that this branch of Meng’s abuse of process claims “unravels’ in the absence of “proof of foreign misconduct.”
“From beginning to end, we see that the U.S. behaved as we would expect our treaty partners to behave, lawfully and appropriately. We say that the U.S. made lawful, transparent requests within the bounds of the law of Canada. The U.S. didn’t seek to direct Canadian authorities or influence their actions. Normal protocols were followed.”
Majzub added there is no evidence on the record “that even resembles the evidence of foreign misconduct” found in case law to satisfy an abuse of process test. Moreover, extradition judges must presume good faith on the part of a treaty partner absent evidence to the contrary, he said.
“When the United States sought information about [Meng] from Canadian authorities, they relied on established information protocols,” Majzub said. “The requests demonstrate repeatedly that the United States is behaving like an honorable treaty partner, using lawful means to seek information.”
Canadian prosecutors will continue making their case Wednesday.