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

The judge tasked with deciding the extradition of Huawei CFO Meng Wanzhou to the United States handed the telecom executive a partial victory Thursday, finding an “air of reality” to her allegations of abuse of process by the U.S. in certifying the case against her.

VANCOUVER, British Columbia (CN) — The judge tasked with deciding the extradition of Huawei CFO Meng Wanzhou to the United States handed the telecom executive a partial victory Thursday, finding an “air of reality” to her allegations of abuse of process by the U.S. in certifying the case against her.

British Columbia Supreme Court Associate Chief Justice Heather Holmes’ ruling also denied the Attorney General of Canada’s application to dismiss allegations that “the requesting state deliberately withheld or misstated evidence in the” record of the case. Holmes found the record of the case, referred to in her ruling as the ROC, “has the potential to mislead, concerning the operation and effects of U.S. sanctions laws, because of the generality of some of the ROC’s statements on that topic, coupled with the complexity of the subject matter.”

She wrote: “The ROC offers a broad overview of U.S. sanctions laws as they relate to financial transactions, but it does not appear to relate the operation of those laws to the particular situations of Huawei and Skycom or to Ms. Meng’s alleged denial that Huawei controlled Skycom. As a result, the import of some of the broad and general statements for the alleged conduct and circumstances in this case is not clear to me at this stage.”

Holmes’ ruling came on the eve of the fifth day of hearings into another branch of Meng’s abuse of process allegations, where the court has heard from Canadian law enforcement officers involved in her initial detention at Vancouver airport and subsequent arrest.

The United States accuses Meng of defrauding HSBC during a PowerPoint presentation in Hong Kong in 2013, given to assuage the bank’s fears of violating U.S. sanctions on Iran by doing business in U.S. dollars with a Huawei affiliate known as Skycom. Court proceedings in her extradition fight are expected to continue well into 2021. 

The week began with the testimony of Royal Canadian Mounted Police Constable Winston Yep, who told the court he didn’t think a three-hour delay in her arrest was “unreasonable” and disagreed with his superiors about how there were no “officer safety issues” surrounding her detention.

Meng’s lawyer Richard Peck suggested Yep was not being “honest” when he claimed officer and public safety issues factored into the decision not to arrest Meng on the plane immediately upon arrival at Vancouver Airport on Dec. 1, 2018.

On Tuesday, Yep acknowledged he didn’t do any open source or police database searches on the Chinese telecom executive prior to the arrest, and didn’t know she had two multimillion-dollar homes in Vancouver when he swore an affidavit to secure the arrest warrant. The affidavit included the statement that Meng had “no ties to Canada.”

Under questioning from Peck, Yep said he didn’t think to correct the affidavit once he learned of Meng’s real estate holdings. Peck asked Yep if “alarm bells” went off in his head once he realized the affidavit was inaccurate.

“If you knew she had ties to Canada, I assume you would’ve put that in your affidavit,” Peck said. “You swore every assertion in this affidavit to be true, did you not?”

Yep replied, “I did not prepare the affidavit, I reviewed the affidavit,’ Yep told the court Tuesday. “It was my error in not recognizing that.”

After Yep, Canada Border Services (CBSA) agent Scott Kirkland, who was involved in Meng’s initial detention, took the stand. He said it was “very common” that multiple officers would be involved in a secondary examination of an airline passenger transiting through Canada, telling the court that travelers at ports of entry have a low expectation of privacy.

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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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