Meng Wanzhou's lawyers seek access to 37 key documents to challenge extradition

Lawyers for Meng Wanzhou zeroed in on communications surrounding the Huawei executive's 2018 arrest Monday as they tried to convince a B.C. Supreme Court judge to release documents they believe could prove Meng was a victim of misconduct.

The chief financial officer's defence team argued that wrongdoing on the part of the RCMP and Canada Border Services Agency officers who detained and arrested Meng meant that the Crown should not be able to shield certain details of their planning from public view.

The lawyers also suggested documents disclosed to the defence in recent months suggest U.S. authorities were still interested in obtaining information related to Meng's laptop, phones and tablet more than two months after she was arrested on an extradition warrant — despite the Crown's insistence that those details were never shared with American law enforcement.

The arguments came on the first day of what is expected to be a week's worth of hearings related to legal privileges attached to documents generate by the high-profile case. 

"[Meng] reasonably believes that many documents are subject of excessive redactions and overly broad claims of privilege," the defence team argued in documents filed in advance of the hearing.

"It is likely that there is redacted information that is relevant to her abuse of process allegations."

'I'm on the line'

The first day was held in open court, whereas the rest of the proceedings are expected to occur behind closed doors.

Meng — who was required to attend the hearing — joined by telephone. Associate Chief Justice Heather Holmes asked if she was present as the proceedings  kicked off.

"Yes, my lady, I'm on the line," Meng replied.

The U.S. wants Meng extradited to New York to face conspiracy and fraud charges connected to allegations she lied to an HSBC banker at a meeting in Hong Kong about Huawei's relationship with a subsidiary accused of violating U.S. economic sanctions against Iran.

Prosecutors claim Meng denied the relationship between the two companies, and that the bank then placed risked prosecution for violating the same economic sanctions by relying on her alleged misrepresentations to make financial decisions.

Meng's lawyers claim U.S. and Canadian authorities conspired to violate her rights at the time of her arrest by having the CBSA detain and question her without a lawyer and seize her electronic devices.

At an earlier hearing, they accused the RCMP of sharing technical details about those devices with the American Federal Bureau of Investigation in breach of Canada's Extradition Act.

They plan to argue in future hearings that the case should be tossed because of an abuse of process. The current set of proceedings concern the documents the defence claims they'll need to make that case.

The arguments follow months of back and forth between the Crown and defence over what started as a trove of 93,000 documents identified as relevant to defence inquiries.

A Crown lawyer told the court public servants spent hundreds of hours whittling that amount down to 387 documents, and with the help of a lawyer appointed to act as a kind of referee in the case, they have been able to focus on 37 documents up for discussion this week.

Holmes has to rule on redactions to some documents and on decisions to exclude about two dozens documents from public view entirely because of privileges attached to communications between lawyers and their clients, other legally protected communications and public interest.

'Not a black hole'

Meng's lawyers claim that an abuse of process by authorities means even well-established legal privileges should be waived. 

They cited a ruling from the Supreme Court of Canada in which the country's top court said litigation privilege was "not a black hole from which one's own evidence of misconduct can never be exposed to the light of day."

But the Crown said privilege concerning communications like those between solicitors and clients should only be set aside if "absolutely necessary" — as in cases where it's needed to prove a person's innocence. 

In their arguments, lawyers for Canada's attorney general said Meng should have to pass a threshold to meet that bar showing that she could neither get the information from another source nor be able to prove her abuse of process allegation without it.

The defence said the Crown has already waived privileges related to certain communications — including a letter from a department of justice lawyer to the RCMP officer who arrested Meng giving instructions for the way she should be detained.

Based on the Crown's decision to release that information, the defence claims it should be able to access other related communications.

Defence lawyer Scott Fenton claimed there has been "an inconsistency and an unfairness" in the Crown's decision to release certain information related to requests under international treaties by U.S. authorities for information about Meng's electronic devices.

Fenton said the Crown recently disclosed a detailed legal analysis connected to a request in February 2019, while still refusing to release a "flurry" of emails which occurred at the time of the first request in the days after Meng's arrest — when the defence believes the RCMP sent the FBI the information it was looking for.