Meng Wanzhou, CFO of Huawei Technologies arrived in Vancouver, Canada on December 1st, 2018 on a regular flight from Hong Kong. Upon disembarking from the plane, she was ‘welcomed’ by officers of the Canada Border Services Agency while officers from the Royal Canadian Mounted Police were nearby. Instead of informing her about the arrest warrant on request of the U.S., they pretended to conduct a routine check during which she was not only questioned about the case brought forward by the U.S. against her, but also her possessions were confiscated without being informed of her pending arrest. An arrest which according to the court order should have taken place immediately! Here is part 2 of our findings.
Delaying the arrest on purpose?
An arrest is however something entirely different. Beside the requirement of a probable cause for the arrest, for example when an officer would witness a crime, or when a warrant for arrest is present, an arrest triggers a process which gives the authorities certain rights and powers. But it also triggers the rights of the arrestee! In Canada where the arrest took place, this gives the arrestee the following rights:
- The right to remain silent.
- The right to be informed about the reason of the arrest.
- The right to hire and instruct a lawyer.
- The right to be told about the availability of duty counsel and legal aid.
- The right to speak with a lawyer, in private, as soon as possible.
By not formally arresting Meng Wanzhou, but instead pretending to be performing a routine check as we find in the now publicly available records of the procedure, she was deprived of her rights as an arrestee. Not for a few minutes but for 3 hours, during which Meng Wanzhou was questioned without being informed of the reason for that questioning, and without being informed that there was an arrest warrant with her name on it. During that same period between being detained for ‘routine inspection’ and the actual arrest, all her belongings were confiscated and inspected. Meng Wanzhou even provided the codes for her devices upon request by the CBSA Officers!
And as the now available records show, Canadian authorities were already coordinating with the FBI about these belongings during that time prior to her arrest. That none of this can be considered kosher under Canada’s legal system should be crystal clear. Far more concerning is however that the involved agencies apparently were already aware of that, best demonstrated by the statement ‘The FBI will not be present in an effort to avoid the perception of influence.’ in their report.
RCMP Officer Yep described a 30-minute meeting with CBSA officers on the morning of December 1 about how the arrest would be conducted. An email from Yep’s supervisor had suggested that Meng Wanzhou be arrested on the plane. But in the meeting CBSA officers said they regarded the plane as their jurisdiction. After Meng Wanzhou’s Cathay Pacific flight from Hong Kong landed around 11am, she was identified by CBSA officers who led her away to be questioned. Yep said he did not ask the CBSA to conduct an examination of Meng Wanzhou, nor obtain any information from her.
Was the delayed arrest and confiscating belongings legal?
All of this brings us to important questions. Is this even legal at all? Can Canadian authorities postpone an arrest, and with that the constitutional rights of an arrestee when they already have an arrest warrant? Are Canadian authorities allowed to pretend to perform a routine inspection when they are instructed by a court order to arrest the suspect? I am not a lawyer and most certainly not familiar with the Canadian legal system, but I want a qualified answer to these questions. So, I asked 3 attorneys from British Columbia this question:
Is it legal to detain a suspect without formally placing that person under arrest when a warrant for the arrest of that person is already issued?
All 3 answered in the same way. No! And all 3 explained that a warrant for an arrest must be executed at the first opportunity, and that the arrestee must be informed immediately without any delay. One even explained that any evidence which was detained prior to the formal arrest when a warrant for the arrest was already available might even not be permittable in the case against the arrestee.
After the CBSA examination, RCMP Officer Yep and a colleague acting as a translator entered a room where Meng Wanzhou was sitting alone and arrested her at 2.15pm. He said Meng Wanzhou was “surprised at first” but cooperative. He then read Meng Wanzhou her charter rights, including her right to a lawyer, and said she could also contact the Chinese consulate.
With this statement during the court hearing, which is confirmed by the issued protocols, RCMP Officer Yep confirms that the arrest of Meng Wanzhou was delayed by 3 hours. The available protocols also show that her belongings were confiscated prior to her arrest and Meng Wanzhou had provided the access codes for her devices before her arrest.
That they all confirmed that depriving an arrestee of their rights by not stating the arrest is not legal in Canada did not surprise me. It is what I expect from a respected country with a well-functioning legal system like Canada. What did however surprise me is that they all asked me “Is this about the Meng Wanzhou case?”. Apparently, the legitimism of this arrest is a hot topic in Canada’s legal circles, and I assume we have not heard the last of it.
And yes, now I fully understand why the defence team digs into the details of the arrest itself. I would do that, too! Why? Here is why!
Scott Kirkland was one of the Canada Border Services Agency (CBSA) officers to intercept Meng Wanzhou when she disembarked at Vancouver International Airport in December 2018. Kirkland told the court he was worried that “our examination would be argued as a delay in due process,” testifying in the latest round of hearings in Meng Wanzhou’s U.S. extradition case.
He and other officers “knew this was going to be a big deal” once he realized that Meng Wanzhou was a high-profile person with a U.S. arrest warrant out for her. Kirkland said he suggested CBSA skip its interview and instead simply identify Meng Wanzhou and hand her over to the RCMP.
“There was concerns of possible Charter issues being raised if we’re going to court and at the time I assumed we’d go to court,” Kirkland said, referring to Canada’s Charter of Rights and Freedoms which outline civil rights guaranteed to anyone in the country, citizen or otherwise.
This means that CBSA Officer Scott Kirkland knew and confirmed, that delaying the arrest of Meng Wanzhou means a violation of her rights under Canada’s Charter of Rights and Freedom. The Charter clearly determines the civil rights ‘to anyone in the country, citizen or otherwise’, it does not say anywhere ‘unless Chinese or otherwise on the personal hitlist of Mr. Trump’. Case closed I would say!
Read Part 1!