Crown claims CBSA acted 'reasonably' in grilling Meng Wanzhou before arrest

A lawyer for Canada's attorney general says Canada Border Services Agency officers acted within the bounds of the law when they questioned Meng Wanzhou and seized her phones prior to the RCMP arresting the Huawei executive in December 2018.

Diba Majzub told the B.C. Supreme Court judge overseeing Meng's extradition proceedings Wednesday that Canadian law recognizes the "unique context" of a port of entry into the country as a place where travellers don't enjoy the same rights to privacy as they do elsewhere.

Meng's lawyers claim the CBSA conducted a fake exam as a pretext for a covert investigation directed by the U.S. Federal Bureau of Investigation, pointing to the fact Meng spent three hours with border officers despite the RCMP warrant calling for her "immediate arrest."

But Majzub said both agencies acted "reasonably" in a situation neither had encountered before and that the CBSA had legitimate worries about Meng entering the country.

"It was the CBSA's decision. It wasn't the RCMP telling the CBSA: 'Would you go first and do something for us?' It wasn't the FBI. It was the CBSA that made that decision," Majzub said.

"They believed they had a duty to address their concerns about inadmissibility for criminality and national security."

Duelling narratives before judge

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

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

Prosecutors claim the bank relied on Meng's alleged misrepresentations in deciding to continue handling financial transactions for Huawei, risking loss and prosecution.

The current set of hearings relates to what the defence claims were a series of violations of Meng's constitutional rights during her arrest and in the days immediately following. 

Meng's lawyers claim the CBSA had no valid reason to question Meng or to seize her cellphones. 

They've also accused the agency of breaching rules around the sharing of information by giving the phone passcodes to RCMP and allegedly sharing technical information from Meng's electronic devices with the FBI.

The officers involved testified in court last fall, leading to volumes of transcripts, evidence and legal arguments that Associate Chief Justice Heather Holmes has to sift through as she compares the duelling narratives of the Crown and defence.

Doing 'what they do every day'

Majzub said a "lookout" was placed on Meng before her arrival on a flight from Hong Kong that would have automatically triggered her interception by CBSA officers.

And while the defence claims she was in transit, headed to Mexico City later in the day, Majzub said Meng told one of the officers she wanted entry into Canada to leave bags at her house.

"The CBSA officers decided to do what they do every day," Majzub said.

"And proceed with an examination and they did so immediately to address their admissibility concerns, all of which is standard CBSA procedure."

The Crown lawyer put the CBSA's actions in the context of a Supreme Court of Canada decision laying out the framework for three different types of border searches: routine questioning that may involve a baggage search or frisk; strip or skin searches in a private room; and cavity searches involving doctors and X-rays.

Majzub said everything that happened to Meng fell within the first category, in which the Supreme Court of Canada said "It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel."

Cellphone seizure 'evolving' area of law

Holmes repeatedly interrupted Majzub with questions about his arguments and the allegations made by defence.

Her concerns included the rationale for seizing Meng's phone and compelling the passcodes.

Majzub described the law around search and seizure of electronic devices at the border as "evolving" but pointed Holmes to recent court decisions that found CBSA officers have a right to examine electronic devices as part of the least invasive level of a border examination.

The Crown has also said that a certain amount of sharing of information is standard under protocols that guide interactions between international law agencies.

Both Crown and defence say they will finish their arguments on Meng's arrest by the end of the week. 

The proceedings will continue next week with arguments related to allegations that the U.S. is stepping beyond its jurisdiction and the norms of international law in charging Meng.