A Crown lawyer urged the judge overseeing Meng Wanzhou's extradition proceedings to "leave the politics to the politicians" Thursday by rejecting the Huawei executive's bid to toss the case over comments by former U.S. President Donald Trump.
Robert Frater told B.C. Supreme Court Associate Chief Justice Heather Holmes the defence team's allegations of political interference were based on the "thinnest of evidence" and that there was no indication Trump's words had affected the fairness of the hearing.
"Everyone in this courtroom knows that the elephant in the room in this case has always been the geopolitical winds that swirl around it," Frater said.
"Yesterday, my friends tried to bring the elephant into this room. With respect we urge you to focus on the facts and the law."
Operating under an oppressive 'cloud'
Frater was delivering the Crown's response to the defence's bid to stay extradition proceedings against Meng because of alleged abuse of process.
Meng, Huawei's chief financial officer, is charged with fraud and conspiracy in New York in relation to allegations she lied to an HSBC banker about her company's control of a subsidiary accused of violating U.S. economic sanctions against Iran.
Prosecutors claim that by relying on Meng's reassurances, the bank risked loss and prosecution for breaching the same set of sanctions.
This week's proceedings are part of a series of hearings spread over the next two-and-a-half months, culminating in arguments on the U.S. extradition request itself.
On Wednesday, defence lawyer Richard Peck accused Trump of using Meng as a bargaining chip and reducing the 49-year-old from a human being to "chattel" in December 2018, when he told a reporter he would "certainly intervene" in the case to get a better trade deal with China.
The defence team contends the former U.S. president's words amount to an individual threat to Meng and a general threat to the integrity of the Canadian justice system, as Meng tries to defend herself under an oppressive "cloud."
Decision best left to minister of justice
Frater said Trump's words were "anodyne" and "vague" and any power he had over the case has ended, along with his term in office.
He also said any arguments the defence had to make about allegations of political interference should be made to Canada's minister of justice — if and when a decision to commit Meng for trial in the United States is made.
Both the Crown and the defence cited a 2001 decision in which the Supreme Court of Canada upheld a judge's decision not to extradite four men to the U.S. because of comments a U.S. prosecutor made to the CBC's Fifth Estate.
An assistant U.S. attorney told a reporter one of the accused would "be the boyfriend of a very bad man" if he waited out his extradition hearing and ended up in jail after a trial.
In that case, "the requesting state was reaching into the Canadian extradition hearing and threatening someone with harsh punishment if they availed themselves of their legal right to contest extradition," Frater said.
"What you have to decide are whether [Trump's] comments either individually or cumulatively amount to a threat."
3-part test for stay
Holmes' decision will come down to a three-part test established by Canada's highest court in a 2014 decision that emerged from a trial involving two Quebec men charged with firearms and other offences related to an investigation of drug trafficking involving the Hells Angels.
The pair claimed they were victims of police misconduct and that prosecutors tried to force them to forego a trial by threatening additional charges if they didn't plead guilty.
A lower court stayed the proceedings, but the Supreme Court of Canada overruled that decision, because societal interest in having a trial outweighed the Crown wrongdoing.
The top court said judges ruling on applications like Meng's should determine: if the right to a fair trial or the integrity of the justice system is threatened, if an alternative remedy exists and if the interests of the accused outweigh the interests of society in having the case heard.
It's a test Holmes will have to apply several more times in the coming weeks, as Meng's lawyers have scheduled three more hearings for alleged abuses of process.
The defence team claims Meng's constitutional rights were violated on the day of her arrest, when CBSA officers interviewed her for three hours without a lawyer, before RCMP told her she was wanted for extradition. They also claim the U.S. misled Canada about the strength of the case against Meng. And they claim the charges themselves reach beyond U.S. jurisdiction.
Towards the end of his arguments, Frater said he believed the choice facing Holmes is clear.
"Having these charges heard on their merits would be a triumph for the rule of law," he said. "If she goes to trial and whether she's acquitted or convicted — justice is served."
The extradition proceedings will continue on March 15.