Defence argues 'breadth and height' of abuse by former U.S. president and officials requires stay

Jason Proctor · CBC News · Posted: Aug 09, 2021 2:49 PM PT

The word "unique" has been thrown around a lot at Meng Wanzhou's extradition proceeding.

But the lawyer who heads the Huawei executive's defence team told the B.C. Supreme Court judge overseeing the hearing Monday the term is no exaggeration when it comes to the high-profile case.

As he made a final pitch to Associate Chief Justice Heather Holmes to stay the proceedings, Richard Peck cited what he claims is a pattern of abuse stretching from the former U.S. president to the men and women who first detained his client more than two-and-a-half years ago.

"You've heard this — I'm sure you're tired of it — the statement that this is a unique case. That's not hyperbole on our part," Peck told B.C. Supreme Court Associate Chief Justice Heather Holmes.

"When before has the head of state interfered in an extradition? When before has an extradition case been the subject of four eminently arguable abuse of process applications?"

'Contrary to the rule of law'

Meng is Huawei's chief financial officer and the daughter of the Chinese telecommunication giant's founder, Ren Zhengfei.

The U.S. wants her rendered to New York, where she faces charges of fraud and conspiracy related to allegations she lied to an HSBC executive in Hong Kong about her company's control of a subsidiary accused of violating U.S. economic sanctions against Iran.

Prosecutors claim HSBC relied on Meng's alleged misrepresentations in deciding to continue handling Huawei's financial transactions, placing the bank at risk of loss and criminal prosecution.

The 49-year-old was detained by Canada Border Services Agency officers and questioned after disembarking a flight from Hong Kong on Dec. 1, 2018. Three hours later, RCMP arrested her on a provisional warrant, kicking off a legal battle that entered its final two weeks Monday.

Peck's comments follow four separate lines of argument from the defence in previous months alleging abuses of Meng's rights. He told Holmes she can stay proceedings based on individual violations or the cumulative weight of abuse the defence contends is a threat to the Canadian justice system.

"To commit this case or permit it to proceed runs contrary to the rule of law," Peck told the judge.

"To proceed would condone conduct antithetical to Canadian values and antithetical to the rule of law."

'The very definition of ransom'

The so-called first branch of abuse involved comments from former U.S. President Donald Trump suggesting he would intervene in the case to get a better trade deal with China.

"That's the very definition of ransom," Peck told Holmes. "That's what we're dealing with here."

The defence has also argued that CBSA officers violated Meng's Charter rights by questioning her without a lawyer before her arrest by RCMP and then mistakenly handing passcodes to her electronic devices to police.

Meng's lawyers have also argued that the very nature of the prosecution runs afoul of international law because the United States is claiming jurisdiction over the actions of a Chinese national during a meeting in Hong Kong with almost no connection to the U.S..

Finally, the defence team argued last week that the U.S. misled Canada about the strength of its allegations by omitting key details that would have undermined the record of the case certified into evidence before the court.

Peck's colleague Tony Paisana told Holmes that the "breadth and height of abuse" is one of the "more rare and unique aspects of this matter."

"The conduct ranged from that of frontline U.S. attorneys drafting court documents and officers tasked with arresting Ms. Meng in conformance with the law, all the way to the president of the United States," he said.

The 'clearest of cases'

In trying to convince Holmes, Peck cited two previous cases that established the bar for the extraordinary remedy of a stay of proceedings to rectify abuse.

In one, the Supreme Court of Canada upheld a judge's decision not to extradite four men wanted in the U.S. for a $22-million telemarketing scam after an assistant U.S. attorney told CBC's The Fifth Estate one of the accused would "be the boyfriend of a very bad man" if he waited out his extradition hearing and wound up in jail after a trial.

The men argued that they were being threatened with rape in prison, which would have violated the charter right to life, liberty and security of the person — not to mention the right not to be subjected to cruel and unusual punishment.

And in a 2014, Canada's top court set a three-part test for application like Meng's through a case where a pair of accused claimed they were victims of police misconduct during an investigation involving the Hells Angels

Judges considering a stay must determine if the right to a fair trial or the integrity of the justice system is threatened, if an alternative remedy exists and if the interests of the accused outweigh the interests of society in having the case heard.

Peck said the Trump's alleged intervention alone should justify a stay of proceedings to prove that "words matter."

But he questioned other factors — like a retired RCMP witness' refusal to testify at the proceeding after he was accused of passing information to the Federal Bureau of Investigation.

"On behalf of our defence, it is our submission that the answers to these questions are self evident," Peck told the judge.

"And this case should be stayed as the clearest of cases."