Judge allows Meng defence to probe if U.S. authorities attempted to deceive Canada

Ruling could allow court to throw out parts of U.S. submissions to extradition case

Huawei CFO Meng Wanzhou arrives for a court hearing in Vancouver | Albert Van Santvoort/BIV files

As the cross-examination of Canada Border Services Agency officer Scott Kirkland by Meng Wanzhou’s defence lawyers continued today with the witness butting heads with Meng attorney Mona Duckett, Associate Chief Justice Heather Holmes issued a separate online ruling, allowing the Huawei executive to argue if U.S. authorities were not truthful in its extradition request to Canada.

Issued as the hearing was happening, Holmes decision was based on testimony last month - where Meng's defence argued U.S. authorities misrepresented or omitted a number of components in fraud allegations against Meng.

Holmes decision allows for Meng's defence to further argue two specific topics – one, that U.S. authorities in their Record of the Case (ROC) did not include two powerpoint slides in Meng's presentation to HSBC officials in 2013 that showed the Huawei CFO did not deceive the bank about doing business illegally in Iran; two, that U.S. claims that only "junior" or lower-level HSBC officials knew of its relationship with Huawei was incorrect, with senior bank executives well aware of the situation.

In her ruling, Holmes said there exists "an air of reality to Ms. Meng's allegations," but added the result may not be the staying of the case and Meng gaining freedom, but rather the current extradition hearings throwing out portions of the U.S. ROC that are considered not reliable.

Meanwhile, during the hearing itself Thursday, Duckett’s strategy appeared to be to challenge Kirkland on a number of his facts presented at testimony Wednesday – including on whether Meng would have encountered a CBSA agent had she simply connected through YVR en-route to Mexico.

The defence attorney noted the presence of a specific area at the airport set aside for connecting international passengers where someone – like Meng – can get off the plane and wait for their next flight without necessitating entering Canada.

Kirkland fired back on those claims, saying that even connecting passengers have to apply to enter Canada depending on their nationality and status, and would at least have to go through a machine declaration. He also added someone who has triggered national security concerns for being allowed entry – such as Meng – would have been met with CBSA officers at some point in her transferring process.

“Not all connecting passengers are entitled to enter the transfer area,” Kirkland said.

Duckett also challenged Kirkland’s testimony that the RCMP had no jurisdiction at a port-of-entry to make an arrest, adding that the CBSA officer on the stand has not had a chance to read to Extradition Act to find out if he had the power to issue the arrest warrant for Meng (Kirkland had said that CBSA officers, while able to execute some warrants, do not have the power to execute extradition-related ones).

“You have not seen the Extradition Act,” Duckett asked. “How do you know if you had jurisdiction?”

Kirkland replied that a lot depends on the situation in terms of who has jurisdiction, but added that in this case, the CBSA had to carry out its own admissibility exams first – and whatever information it extracts in examination is not automatically handed to the RCMP without going through the proper liaison channels.

“The police is not privy to the contents of our examinations,” Kirkland said.

In the late morning, Duckett turned her attention to the CBSA position that it had to examine Meng's admissibility into Canada before any police warrants can be served. Duckett said that the outstanding U.S. warrant for Meng's arrest should have made Meng inadmissible into Canada, adding that the subsequent CBSA investigation into the tech executive's case showed little of the same details in a typical espionage investigation.

"Did anyone ask her where she was going?" Duckett asked Kirkland. "Did anyone ask her how long she was staying? ... The fact is, this investigation did not turn up one iota of evidence to support the national security concerns [outlined as the reason for secondary inspection]."

Duckett also questioned why Kirkland seized both the cellphones of Meng and her companion on the flight from Hong Kong if officers did not plan to search the devices for evidence of national security threats - especially when the decision was made earlier by the CBSA to seize and inspect the phones.

In response, Kirkland said there were two items at play; he noted that CBSA officials agreed to seize the device, but the decision to search them would be up to the officer handling the secondary examination - which was not Kirkland, he said.

When pressed by Duckett on what the CBSA's justification for searching the phones, Kirkland said he could not recall the rationale.

In the afternoon, Duckett followed the same line of questioning, pointing to a number of facts to try to show the CBSA inspection of Meng was not a typical border admissibility test. One such examples, Duckett said, was that Meng had prescription medication with her to last her a long period of time (for her anticipated trip to Mexico, Costa Rica, Argentina and beyond) - which would normally trigger restrictions of what a person can bring into Canada.

The fact that CBSA officers did not look at the medications at all, Duckett said, supports the idea that the CBSA was seizing only the electronic devices and not other items that would be of interest in a typical admissibility. Duckett added that the defence's stance is that the plan was to turn the devices over to the FBI - something Kirkland strongly refuted.

"I never made statements about the RCMP only needing the devices and not the luggage, and I never dealt with the FBI," Kirkland said in court.

Again, as with the case with the previous witness (RCMP officer Winston Yep), Kirkland's note-taking of the day's events came under scrutiny, with the CBSA officer noting he only jotted down points that he felt was important and new to the inspection process.

Duckett then criticized Kirkland for jotting down Meng's device passwords on a piece of paper - calling it a non-standard way to record information during the inspection. Kirkland fired back that such a practice also wasn't regulated by law to be improper - adding that the note-taking procedure was standard given the amount of notes he would otherwise had to take down.

The hearing continues on Friday.