Lawyers for Meng Wanzhou want the judge overseeing the Huawei executive's extradition proceedings to conclude that a key RCMP witness is refusing to testify because he would undermine the Crown's case.
In documents released to the public Thursday, Meng's legal team says their client is entitled to challenge former Staff Sgt. Ben Chang's written claims that he didn't share information taken from her electronic devices with the U.S. Federal Bureau of Investigation.
Instead, they say the retired officer — who now lives in Macau — has hired a lawyer and refused to testify, the Crown hasn't compelled him as a witness, and the RCMP destroyed all his emails and text messages once he left the force.
"It is simply unprecedented for a sworn police officer, retired or otherwise, to refuse to testify, let alone to refuse to be cross-examined after the Crown has filed his affidavit with the court," the submissions read.
"His refusal to attend for cross-examination warrants an adverse inference that cross-examination would have exposed facts unfavourable to his credibility and likely contrary to his stated evidence."
Accused of lying to HSBC executive
Veteran Vancouver-based defender Richard Peck, who leads Meng's defence team, will make the in-court arguments about Chang's role during the next few days of proceedings.
His line of attack is laid out in the final section of a 209-page document detailing defence submissions.
Meng, Huawei's chief financial officer, is charged with fraud and conspiracy in New York in relation to allegations she lied to an HSBC executive about the Chinese telecommunications giant's control of a subsidiary accused of violating U.S. economic sanctions against Iran.
Prosecutors claim the bank risked prosecution and loss by relying on Meng's alleged misrepresentations to continue handling financial transactions with Huawei.
The latest defence documents were released even as Meng's lawyers are arguing in B.C. Supreme Court that Associate Chief Justice Heather Holmes should stay proceedings because of alleged violations of Meng's rights during her arrest at Vancouver's airport on Dec. 1, 2018.
Evidence 'can only come from him'
Chang was the officer who was in touch with a legal attache from the FBI in the days following the seizure of Meng's electronic devices.
The defence claims the RCMP recorded technical information associated with Meng's phones, tablet and laptop and that Chang then shared them with his American counterpart — in violation of the Extradition Act.
The issue was the subject of considerable questioning during testimony last fall of the RCMP and Canada Border Services Agency officers involved in the case.
Chang swore an affidavit denying forwarding the information to the FBI, but the notes of another senior officer indicate that a colleague told her Chang had indeed "provided" the details to his U.S. counterpart.
"Staff Sgt. Chang's evidence on the issue of what he did and did not do can only come from him. This point cannot be adequately covered by other witnesses," the defence arguments read.
"The court should have little difficulty forming grave concerns about the credibility of Staff Sgt. Chang's affidavit and his role in gathering and sharing the [electronic serial number] information."
Up to Meng to compel RCMP witness
The defence also plans to challenge the RCMP's decision to destroy Chang's emails and text messages after his retirement in 2019.
An RCMP network analyst who testified in the fall said a scan of the police force's security system failed to show any evidence of emails sent from Chang's account to the FBI after the date of the request for the technical information.
But the defence claims the scan couldn't account for emails sent from Chang's personal account or blind copies of emails that might have been sent to recipients outside the RCMP.
By contrast, in their written arguments, the Crown says the judge shouldn't draw any negative conclusions from Chang's decision not to testify.
The Crown says it was up to Meng's lawyers to try to compel him to take the stand. And they didn't act.
"It is possible it was an oversight, however, a more plausible explanation is that [Meng] made a strategic choice knowing that Staff Sgt. Chang's evidence would be detrimental to her case if he actually testified," the Crown's arguments read.
'Not exactly a grilling examination'
The defence arguments are all in aid of trying to convince Holmes that Canadian and U.S. authorities conspired to violate Meng's rights as guaranteed by the Charter of Rights and Freedoms.
On Thursday, Holmes challenged the defence theory that a three-hour examination conducted by CBSA officers before they turned Meng over to the RCMP was part of a covert criminal investigation.
"If this was all as you're suggesting, would the officers not have done a more concerted job of questioning Ms. Meng?" the judge asked. "It's not exactly a grilling examination or even a very vigorous one, or detailed."
Meng's lawyer Tony Paisana said the "fact that they didn't do a great job of violating her rights doesn't mean that they didn't violate her rights."
The back and forth was one of several points at which the judge appeared to question the defence's assertions. She also said she was having a hard time believing that the CBSA's failure to ask Meng about unlabelled medication meant the customs exam was bogus.
Meng has denied the accusations against her. Arguments related to abuse of process are expected to continue for the next two weeks.
Final submissions on the U.S. request to extradite Meng are expected to conclude by the middle of May. Holmes is likely to deliver her final decision later this year.
About the Author
Jason Proctor is a reporter in British Columbia for CBC News and has covered the B.C. courts and mental health issues in the justice system extensively.
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