Meng lawyers accuse CBSA of intentionally not making records of arrest to conceal evidence

CBSA superintendent testifies that Huawei executive initially reluctant to bring up company's legal troubles in U.S. during border inspection

Albert Van Santvoort/BIV files

Meng Wanzhou’s defence lawyers on Monday dropped a bombshell in the ongoing witness testimony phase of the Chinese tech executive’s extradition hearing, accusing Canadian officials of intentionally not taking notes of the arrest process so that no evidence could be gathered if an investigation occurs.

The accusation was made Monday afternoon as Meng attorney Mona Duckett concluded her cross examination of Canada Border Services Agency (CBSA) superintendent Bryce McRae, asking the officer if he received orders from his superiors to intentionally avoid documenting the steps leading up to – and procedures stemming from – Meng’s December 1, 2018, arrest at YVR.

“This court is going to hear that the regional director general of the CBSA told your chief... not to create additional records about this case because they would be subsequently sought through an access-to-information and privacy request,” Duckett told McRae on the stand. “Were you given such a direction?”

“No, I wasn’t,” McRae replied while also denying being told not to take notes or record certain things for the purpose of concealing the facts.

Earlier in the day, Duckett hammered McRae – as she did with previous witnesses (RCMP officer Winston Yep, CBSA officer Scott Kirkland) – on his lack of notes from the decision-making and coordination behind Meng’s arrest.

Duckett also took issue with a large number of questions to which McRae's answer was that he couldn't recall the exact circumstances of the situation on the day of Meng's arrest.

"You have very poor memory when it comes to this," Duckett said to McRae during questioning.

The defence also said Meng's arrest warrant in the United States should have made her potentially ineligible to enter Canada – thus preventing the RCMP from arresting her after the CBSA entry examination. McRae, however, said that it may take more than having an outstanding charge in another country for someone like Meng to be inadmissible to Canada.

Duckett closed the morning session by saying that Meng – who, at the time of arriving in Vancouver, was connecting from Hong Kong to Mexico – may not have intended to enter Canada, thus avoiding the need to talk to CBSA officers by staying in the international transit area of Vancouver International Airport. 

Duckett said the CBSA had no evidence implicating Meng as a national security threat – something that the CBSA cited as a reason they intercepted Meng after she disembarked from her flight from Hong Kong.

In his opening testimony, the fourth witness – CBSA superintendent Sanjit Dhillon – rebutted that assertion. Under the questioning of Crown attorney Diba Majzub, Dhillon said Meng, had she not been stopped by CBSA officers as she was in 2018, would have still needed to go through border clearance machine kiosks to move into the international transit area.

The kiosks would have flagged her issues and referred her to secondary inspection anyway under the same circumstances that led to the three-hour “detention” where Meng’s electronic devices and passcodes were taken (prior to being arrested by the RCMP).

Dhillon, who also carried out part of Meng’s secondary inspection on that day, provided new insights into the Chinese executive's behaviour at the border. The CBSA superintendent said that Meng – while very forthcoming about her position with Huawei Technologies Co. Ltd. – was reluctant to bring up the fact that the company has been banned from the American market due to U.S. security concerns.

“I wanted to get to the security concern that was outlined to me ... that there were countries that didn’t want Huawei to sell their products there, specifically because of the espionage concerns,” Dhillon said. “So I wanted her to tell me what markets Huawei didn’t sell products in – and the reasons for that.

“I asked her if her company sold products in the United States ... and she said they don’t sell products in the States,” Dhillon continued. “I asked her, ‘Is there a reason why...?’ And she said she didn’t know why. So I reframed the question, saying she is the chief financial officer of a telecommunications company; I would assume she would know why her company is not selling into one of the most lucrative markets in the world.

“She was quiet. She didn’t respond right away, and she eventually said there was a security concern that the U.S. government has.”

Dhillon also noted Meng’s behaviour became much more guarded once the issue of Huawei’s security concerns was broached.

This week's witness testimony sessions in the Meng Wanzhou extradition case resumed this morning, with defence lawyers beginning its cross-examination of Canada Border Services Agency superintendent Bryce McRae.

During the cross-examination, Duckett questioned McRae on a number of fronts, including the fact that the CBSA official called only one colleague in Ottawa not specializing in immigration rules on the question of whether the Huawei executive had an active permanent resident (PR) status in Canada.

McRae said that he was "satisfied" after his own open-sourced investigation that Meng was no longer a PR – which means she would be eligible for the more stringent border entry examination standards during her arrival in Vancouver on December 1, 2018. Duckett, however, alleged that the officer went along with the plan to arrest Meng not knowing the Chinese tech executive's status in Canada.

Monday kicked off what will likely be the most intense and contentious portion of the Meng hearings – the bulk of the witness testimony.

Meng, the Huawei CFO (and daughter of company founder Ren Zhengfei) will continue with the witness questioning portion of the proceedings that began in the last week of October – when the court was only able to complete the testimonies of two witnesses.

Meng’s defence lawyers, specifically Duckett, have focused their efforts on trying to outline what they believe to be an abuse-of-process – where U.S. and Canadian authorities used an extradition arrest to detain Meng as part of a politically driven effort from the United States.

The defence has consistently presented its opinion that Canadian authorities colluded with U.S. counterparts in a conspiracy to arrest Meng in December 2018 in a way that her electronic devices and passwords could be collected and given to American investigators.

Huawei, in anticipation of this week's testimonies, released a statement on Twitter today saying the company remains confident with the Canadian judicial process and of Meng's innocence.

"The truth is coming out," the statement concluded.

Crown counsel, in turn, has argued that the arrest procedure was not out of the ordinary. The main topics of focus surround the Canada Border Services Agency having put Meng through additional border inspections – including collecting her electronic devices and passwords – before letting the RCMP make the arrest.

October’s hearings found that RCMP officer Yep admitted his note-taking was not detailed on the day of the arrest and that he may have signed off on the request for an arrest warrant filed with a judge without closely examining the details of the allegations against Meng. 

But Yep also noted there was minimal coordination between the RCMP and the CBSA on the arrest procedure for Meng, noting officers had to waiting for the Huawei executive to get off the plane before approaching her because of public safety considerations for other passengers on the plane.

CBSA officer Kirkland was also put on the stand in October, and he maintained that the border agency had a right to inspect Meng first – and that her devices and passcodes were passed on to the RCMP in error, not as part of an intentional plan.

The entire witness process will take at least the next two weeks – if not extend into a third week in mid-December.