VANCOUVER -- A B.C. Supreme Court judge has ordered the Attorney General of Canada to turn over additional documents and records that Huawei executive Meng Wanzhou's legal team says may help them argue that Meng's Charter rights were violated last year during her questioning and arrest in Vancouver.
In a significant ruling, Associate Chief Justice Heather Holmes found that Meng's lawyers had met the test of an "air of reality" in their allegations.
That means, in Holmes' view, there is a realistic possibility that the Canada Border Services Agency, the RCMP and the FBI, among others, may have been part of a "covert criminal investigation," as Meng's defence team argues.
Meng was detained and questioned at YVR in December 2018 for nearly three hours by the CBSA prior to her arrest by RCMP.
Her lawyers allege the questioning was a pretext to obtain evidence that could help U.S. authorities prosecute her on fraud charges.
CBSA and RCMP both have repeatedly denied any wrongdoing or that there was an "abuse of process" that violated Meng’s Charter protections.
In her ruling, Holmes laid out the arguments both Crown and defence made in court in September and October based upon the evidence, and then examined the "competing inferences from notable gaps in the evidence."
In particular, Holmes wrote: "I view the evidence tendered by the Attorney General to address those gaps as strategic in its character yet impoverished in substance."
She went on to use the example of CBSA agents turning over the passcodes to several of Meng’s electronic devices to the RCMP, which is against the law.
The Attorney General argued it was a “simple error,” but in the ruling Holmes found that the evidence the AG provided left the question of “when and how the mistake came to light” largely unexplained.
Holmes also highlighted Meng’s accusations that the RCMP sent the serial numbers to some of her electronic devices to the FBI, allowing them to potentially be hacked, and wrote that she found the Attorney General’s responses to be “incomplete in substance.”
“This specific and notable feature of the evidence, considered in the light of the body of evidence as a whole, raises questions beyond the frivolous or speculative about the chain of events,” Holmes wrote.
But Holmes later added a caveat, making it clear that she had not reached any conclusions about the evidence itself, beyond the scope of defence’s request for additional disclosure.
The ruling orders means Crown must turn over additional documents to Meng’s legal team that include: meetings or telephone calls about the co-ordination of her arrest on Nov. 30 and on Dec. 1, including all documents from all RCMP and CBSA officers involved; updates to members of the Canadian Department of Justice and/or the FBI on Dec. 1 related Men’s arrest or detention with the CBSA, among many others.
Holmes carefully noted that her disclosure ruling was not a decision about the "ultimate merit of the allegation" that Meng's Charter rights were violated.
And she added that even if that Meng was eventually able to prove the abuse of process allegations on a balance of probabilities, as her lawyers plan to argue next year, it is unclear if that would rise to the level that would require the extradition case be stayed.
“However,” Holmes noted, “I cannot rule out the possibility that it would.”
A spokesperson for Huawei Canada told CTV News he had no comment on the decision.
And Ian McLeod, a spokesperson with Canada’s Department of Justice wrote, "The Attorney General of Canada is reviewing the decision of Justice Holmes to determine what falls within the scope of her disclosure order, in order to comply with the decision."
He went on to write, "Ms. Meng is being afforded a fair process before the British Columbia Supreme Court in accordance with extradition law and our Treaty with the United States. This will continue throughout these proceedings."
Meng is accused by American authorities of misrepresenting Huawei’s relationship with an Iran-based subsidiary in order to circumvent U.S. sanctions on Iran. She has denied all charges.
Her extradition hearing is scheduled to begin Jan. 20, 2020.
