Canadian Judge Advances Huawei CFO’s Due Process Claims in Extradition Case

Under questioning from Crown prosecutor Diba Majzub, Kirkland said travelers must subject themselves for examination “as soon as feasible.”

“The examination occurs as soon as they present themselves to an officer,” he said.

Kirkland outlined why airline passengers may be chosen for inspections, detailing how border agents use both police databases and open-source options such as a hometown newspaper search “all the time” to determine a traveler’s admissibility into Canada. Kirkland said travelers inspected on national security grounds are often subject to “lengthy” examinations that can “get quite complicated,” especially if the traveler is potentially involved in espionage.

Moreover, Kirkland told the court it is “very common” for travelers to hand over electronic devices and passwords to border guards during examinations, as Meng did. He said he could use a passenger’s text messages to verify if they were entering Canada to visit “an uncle, or if they’re here to work.”

On the day of Meng’s arrest, Kirkland said there was an “initial shock” when he and fellow officers learned Huawei’s CFO was the target of an arrest warrant. He knew it was going to be a “big deal” internationally since her arrival triggered national security concerns.

Under cross-examination by Meng’s lawyer Mona Duckett on Thursday morning, Kirkland defended the agency’s actions the day of the arrest. Duckett suggested travelers aren’t “required” to be examined by border guards when transiting through Canada, but Kirkland said if the CBSA wants to question a passenger, it can.

Duckett grilled Kirkland throughout the morning about the CBSA’s actions in the lead-up to Meng’s arrest, suggesting agents failed to ensure proper procedures were followed during her questioning, since border agency examinations are usually much shorter than the three hours it took to question Meng.

“Because you knew there was a CPIC [police database] entry for an outstanding U.S. warrant,” Duckett said, “right there, I suggest, you had a sufficient basis to do a very abbreviated serious criminality admissibility exam.”

Kirkland said that was true only if he ignored what he knew about Huawei’s legal issues internationally.

Duckett seized upon the border guard’s assertions about espionage and national security concerns, pointing out that her examination didn’t turn up one “iota” of evidence to support them, though he pointed out repeatedly during the cross-examination that it was his colleague who conducted the questioning and took her electronic devices, not him. 

Thursday afternoon, Duckett painted the border agency’s examination of Meng as anything but “normal,” pointing out that her electronics were seized based on flimsy or bogus concerns about national security or espionage and suggesting it was on the request from the RCMP and at the behest of the Federal Bureau of Investigation.

The defense lawyer also focused on Kirkland’s notes from the day of Meng’s detention, suggesting they were deficient and lacking crucial details about the examination of a high-profile target that supposedly triggered national security concerns, despite her travelling to Canada dozens of times with no problems in the last two decades.

“I write down what I think is important. I don’t write down every single detail,” Kirkland testified.

Thursday’s hearing concluded with a lengthy minute-by-minute viewing of a video recording of Meng’s interaction with Kirkland and his CBSA colleagues. Duckett tried to pin down the exact moment when the electronic devices’ passcodes were recorded.

Duckett said she had more questions for the witness lasting around 30 minutes, with the Crown prosecutors telling Justice Holmes that an additional five to seven days of court time would likely be needed.

On Friday, Kirkland called the realization that he had given Meng’s cellphone passwords to the Royal Canadian Mounted Police “heart-wrenching” and “embarrassing.” Earlier in the week, while being questioned by Duckett, Kirkland acknowledged the mistake was a potential privacy violation.

“When were you told by CBSA that you had made an error in surrendering these passcodes?” Duckett asked.

“They didn’t need to tell me I made an error. I knew I made an error as soon as I realized it,” Kirkland said. “It was an embarrassing moment for me. As I am right now. It was heart-wrenching to realize I’d made that mistake.”

Duckett suggested Kirkland’s notes “deliberately hid” details of a meeting and were “crafted” to make Meng’s examination “appear random.” Moreover, Duckett proposed that the paper with Meng’s passcodes was “intentionally created and intentionally given to the RCMP” as part of a “coordinated effort by two law enforcement agencies” which allowed “the CBSA to use their statutory mandate to obtain evidence that may be of assistance to other law enforcement.”

Kirkland pushed back against Duckett’s allegations.

“I would say no to that. That doesn’t make any sense,” he said. “There’s no gain for any officer from the CBSA to be doing such as thing. There’s more headache than there is gain.”

Duckett said, “It’s a proposition I’m putting to you because I’m obliged to put it you. And do you have a headache now?”

Kirkland replied: “I’ve had a constant headache the last few days.”

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