A lawyer for Huawei Technologies executive Meng Wanzhou says the RCMP illegally passed on serial numbers and other crucial identifying details of her cellphones, laptop and tablet to the Federal Bureau of Investigation (FBI).
Scott Fenton said Mounties provided information that enables U.S. authorities to find out calls made and received, phone numbers, time and duration of calls and the physical location of cell towers where calls were connected.
“This is a very serious matter,” Fenton told a British Columbia Supreme Court judge on Thursday. “The provision of this technical information is a gateway to U.S. law enforcement taking other investigative steps … to get other information to use against Ms. Meng.”
Meng’s lawyers are in court seeking documents that they believe would prove allegations that American and Canadian officials conspired to conduct a “covert criminal investigation” at Vancouver’s airport.
The U.S. is seeking her extradition on fraud charges linked to alleged violations of sanctions against Iran, which she and Huawei deny.
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She was arrested during a stopover at the Vancouver International Airport on Dec. 1, 2018.
A lawyer for the Canadian government told the judge it’s simply not true that RCMP passed on details about the electronic devices to the FBI.
“My friend says it’s a very serious allegation and we believe it’s not a fact,” said Robert Frater.
He said he believed the Crown could produce evidence that the information was not shared and the court was expected to reconvene Thursday afternoon to discuss the matter.
Fenton said his assertion was based on an RCMP officer’s notes, which said that a staff sergeant had emailed the device details to a person the defence understood to be the FBI liaison.
He noted that the defence did not have the email in question and, given that the hearing is focused on document disclosure, a simple way to solve the matter would be for the Crown to produce the email.
The Crown argued this week that there is no indication of improper evidence sharing between the FBI, RCMP and Canada Border Services Agency.
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Fenton disputed this claim, telling the court that while the devices were ultimately not passed on to the FBI, the original plan was for the U.S. agency to acquire them.
Following a morning meeting on Dec. 1 with RCMP and CBSA officers, a Mountie wrote in her notes that the border guards would obtain Meng’s phones “as per FBI request,” he told the court.
The Crown has said a forensic examination showed that neither the CBSA nor the RCMP searched the devices. However, Fenton said the exam did show that on Dec. 4, several devices were turned on and at least one was connected to internet.
That was the same day that a RCMP officer wrote in his notes that he photographed the devices and removed the SIM cards, Fenton said.
Also on Dec. 4, an officer’s notes say that a staff sergeant emailed the FBI liaison the devices’ serial numbers, SIM card numbers and what are known as international mobile equipment identity numbers.
The identity numbers allow U.S. authorities to learn significant information about call history, the defence said.
The RCMP violated the Extradition Act and Meng’s constitutional rights when it passed on these details, Fenton argued.
The FBI has since dropped its request for the devices, but Fenton described that decision as “an effort at damage control” and added the agency may have already gleaned significant information from the items.
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“A reasonable inference may be made that they don’t want the devices anymore because they don’t need them,” he said.
Fenton also criticized the Crown for its recent admission that border guards “mistakenly” provided Meng’s passcodes to the RCMP.
The defence argues that a plan was hatched during a morning meeting on Dec. 1 to have border guards interrogate Meng before the RCMP executed the provisional arrest warrant, robbing her of her right to a lawyer or silence.
The court heard CBSA seized her devices and wrote down the passcodes on a piece of paper, both of which they passed to the RCMP at the time of her arrest.
Fenton questioned why handing over the passcodes was being described as a mistake, but not providing the devices. He argued that none of what unfolded was an accident.
“To describe this as an error is to mischaracterize the seriousness of all of the conduct. In our respectful submission, all of the conduct was purposeful and taken in furtherance of the plan that was set that morning.”
He also argued that a border guard’s interview of Meng was inappropriate and crossed into the realm of evidence-gathering.
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The officer didn’t tell Meng she was facing an arrest warrant, but asked her about Huawei’s business in Iran.
In addition to seeking document disclosure, the defence has also suggested a stay of proceedings. The Crown has said there’s no evidence that would justify such a draconian measure, but Fenton
“You have powerful evidence pointing to an air of reality that the remedy for these cumulative abuses of law, that also involve multiple serious violations of Ms. Meng’s constitutional rights, would justify a stay of proceedings,” he said.
The arrest of Meng, who is Huawei’s chief financial officer and the daughter of its founder Ren Zhengfei, sparked a diplomatic crisis between Canada and China. Her extradition trial is scheduled