<![CDATA[Canadian border officers had no power to arrest Meng Wanzhou and instead had to search her first, crown lawyer says]>
Canadian border officers did not have the power to arrest Meng Wanzhou immediately upon her arrival in Canada on December 1, a government lawyer said on Tuesday, as he argued that instead they were compelled to conduct a contentious search of the Huawei executive before she was ultimately arrested by police officers.
Meng's lawyers say the search, including the seizure of her electronic devices, amounted to a proxy unlawful investigation on behalf of the US Federal Bureau of Investigation, conducted in defiance of a court order that Meng be arrested "immediately" by "peace officers".
But Canada Border Services Agency officers did not have general peace-officer powers, and "they did not have authority to execute the warrant under the extradition act," said crown lawyer Diba Majzub.
The argument was part of the case by government lawyers', acting on behalf of the US, that Meng's treatment before her arrest at Vancouver's airport last year was nothing out of the ordinary, and that attempts by her lawyers to obtain more documents about her detention amount to a "fishing expedition".
Meng is currently facing a hearing on evidence disclosure in the British Columbia Supreme Court in Vancouver as part of her battle to avoid extradition to the US to face trial for allegedly defrauding HSBC by misleading the bank about Huawei's business dealings in Iran.
The case has drawn worldwide attention, coming amid the US-China trade war, and has sent China-Canada relations plummeting.
Her lawyers said last week that Canadian border officers conducted an illegitimate "covert criminal investigation" into her when she arrived at the airport on December 1, seizing her electronic devices at the behest of the US Federal Bureau of Investigation. They said this was an abuse of her Canadian constitutional rights, and was in defiance of a court order that Meng be arrested "immediately".
On Tuesday, Justice Heather Holmes repeatedly quizzed Majzub on the need for Meng's border examination, when the CBSA officers knew Meng was going to be arrested on the US extradition warrant.
"How would officers embarking on an examination know that at the end of it Ms Meng ... would remain in Canada in a capacity that would allow the execution of the warrant?" Holmes asked.
Majzub said, "It wasn't a realistic possibility to have told Ms Meng she was immediately inadmissible to Canada and sent back [to Hong Kong]." Therefore, she had to be screened.
He added: "None of it had been predetermined, and it couldn't be determined until there was an examination."
Meng Wanzhou's MacBook computer, which was seized by Canadian border officers on December 1. Photo: British Columbia Supreme Court alt=Meng Wanzhou's MacBook computer, which was seized by Canadian border officers on December 1. Photo: British Columbia Supreme Court
Regarding the seizure of Meng's electronic devices, Majzub called this "normal practice". Although it was known that the FBI wanted the phones, "there is no evidence before the court that the CBSA wasn't interested in the phones for their own purposes", he said.
Among the devices seized from Meng were an Apple iPhone 7 Plus, an iPad, a MacBook computer, a Huawei Mate 20 Pro phone and a memory stick.
"Securing the phones from the outset was lawful and reasonable," Majzub said.
Holmes asked that if there was evidence that the CBSA had no interest in the phones, "would that be a problem" for the crown lawyers' case. "There's no evidence that they [the CBSA officers] weren't doing it for their purposes," Majzub responded.
"They're entitled to go as far as they need" to determine Meng's admissibility to Canada, he said. A foreign national had no right to enter Canada, he said; they must instead prove that they are not inadmissible.
"Ms Meng's charter rights were never [breached] because she was always subject to these examination powers," Majzub added.
The placement of Meng's devices in Mylar bags, to prevent them being remotely tampered with, was also consistent with CBSA authority, said Majzub. "The officers had obvious concerns about criminal admissibility," he said.
"Using these powers to advance a foreign investigation would be improper," Majzub said. Instead, "the officers were entitled to push forward in search of evidence of criminal inadmissibility", and there was no evidence of a domestic criminal investigation.
This line of argument prompted Holmes to interject: "It's not very helpful to suggest there wasn't a domestic investigation ... the issue was, were the CBSA powers being used in support of a foreign criminal investigation?"
Meng Wanzhou's Huawei Mate 20 Pro phone, which was confiscated by Canadian border agents. Photo: British Columbia Supreme Court alt=Meng Wanzhou's Huawei Mate 20 Pro phone, which was confiscated by Canadian border agents. Photo: British Columbia Supreme Court
A CBSA operations manual said phones should be switched to aeroplane mode to prevent tampering, Majzub said. Although he conceded that there was no mention of Mylar bags in the manual, their use amounted to the same thing, Majzub said.
Canadian crown lawyers oppose Meng's efforts to obtain more documents in the disclosure hearing.
On Monday, crown lawyer Robert Frater repeatedly mocked the efforts of what he called Meng's "legal dream team", saying that they had constructed what amounted to an overhyped movie trailer, and that they had left no stone unturned, "maybe even the pebbles under the stones".
They were conducting a "fishing expedition into waters where there is no evidence of any fish" Frater said, likening their arguments to a "conspiracy theory".
But Holmes interjected and questioned the crown lawyers frequently, in a way she had not done with Meng's lawyers last week as they laid out their case.
Meng Wanzhou on Tuesday, which is National Day in China. She wears a Chinese flag pin on her dress. Photo: The Canadian Press via AP alt=Meng Wanzhou on Tuesday, which is National Day in China. She wears a Chinese flag pin on her dress. Photo: The Canadian Press via AP
Meng, 47, was dressed in a bright red business suit, accessorised with an enamel Chinese flag pin, at Tuesday's hearing, taking place on China's National Day. Her husband, Carlos Liu Xiaozong, also wore a Chinese flag pin on his lapel, as did Chinese diplomats in the gallery.
She is Huawei's chief financial officer and the daughter of Huawei founder Ren Zhengfei, and was arrested on a stopover on her way from Hong Kong to Mexico.
The disclosure hearing is due to continue until Friday. Meng's formal extradition hearing is scheduled to begin in January and last until October or November 2020.
Meng, who was once a Canadian permanent resident, is currently free on bail, living in a C$13 million (US$9.8 million) home that is one of two properties she owns in Vancouver.
This is a developing story and will be updated throughout the day.
This article originally appeared on the South China Morning Post (SCMP).
Copyright (c) 2019. South China Morning Post Publishers Ltd. All rights reserved.
