Judge rules lawyers can argue U.S. misled Canadian officials in win for Meng

VANCOUVER — A Canadian border officer denied suggestions by a lawyer for Huawei executive Meng Wanzhou Thursday that he seized her electronic devices at the behest of American investigators. 

Scott Kirkland told the court he also wrote down Meng’s phone numbers and passcodes while she was in the custody of the Canada Border Services Agency for three hours before she was informed of her arrest by RCMP.

Meng, the company’s chief financial officer, is facing extradition to the United States on fraud charges that both she and Huawei deny. 

“My proposition is that you’re seizing the electronics for the FBI,” defence lawyer Mona Duckett said to Kirkland during cross-examination in a B.C. Supreme Court hearing on Thursday. 

“We’re not seizing anything for the FBI,” Kirkland said. 

While the CBSA was aware Mounties would arrest Meng when they were done questioning her, Kirkland said the CBSA screening process was completely independent. 

“Now whether the RCMP made the decision to give the FBI whatnot or what they had pre-arranged, I have no idea,” he said.

Kirkland is the second in a series of witnesses called to testify at the request of Meng’s defence team, which is gathering evidence for arguments it will make next year that she was subjected to an abuse of process.

The defence has alleged there was a “co-ordinated strategy” to have the RCMP delay her arrest so border officials could question Meng under the pretense of a routine immigration exam. 

Also on Thursday, Associate Chief Justice Heather Holmes released a decision allowing the defence to pursue another branch of argument next year as part of its abuse of process allegations.

The defence team seeks to argue that the United States misled Canadian officials in its summary of the case against her by omitting certain evidence.

“I have concluded that there is an air of reality to Ms. Meng’s allegations of abuse of process in relation to the requesting state’s conduct in certifying the (record of case),” the decision says.

Holmes said some portions of evidence will be allowed to be argued by Meng’s lawyers, including that certain statements were left out of a summary of a PowerPoint presentation — the main evidence against Meng in the fraud claim.

“Fairness therefore requires the admission of this evidence.”

Meng is wanted in the United States on fraud charges over allegations she lied to HSBC about Huawei’s relationship with a company doing business in Iran, putting the bank at risk of violating American sanctions against that country. Meng and Huawei deny the allegations.

On Wednesday, Kirkland testified he and his colleague who led the examination were “shocked” when they learned one hour before Meng’s flight landed that such a high-profile case was coming their way. 

He said the border agency was obligated to conduct its own screening of Meng after she landed because officers had suspicions relating to criminality and national security that could affect Meng’s admissibility to Canada. That examination is independent of the RCMP’s process, he said. 

However, he acknowledged on Thursday that his colleagues seemed to “lack the same urgency” about national security, which he said he developed based on internet sources and his own knowledge of telecommunications. He did not lead Meng’s examination. 

Meng was flagged on an internal database because of an outstanding warrant. While Kirkland suggested Wednesday that she was identified as a national security target in the database, he acknowledges that may not have been the case when pressed by Duckett.

During Meng’s questioning, he said she was never informed of the existence of a warrant for her arrest, nor asked about national security concerns like espionage. 

“Do you agree that throughout the examination there was not an iota of evidence gathered to support a national security concern?” Duckett asked.

“That is correct,” he replied.

He also testified Thursday said that CBSA and RCMP discussed how information from the customs and immigration exam could be shared legally. 

Kirkland said that he couldn’t recall whether it was an RCMP or border officer who raised the Customs Act on the issue of information sharing, but he agreed that it was raised in anticipation that border officials could discover information worth sharing. 

“It was brought up in the context of how the RCMP could legally obtain information from your examination?” Duckett asked.

“Yes,” Kirkland said.

“So, in advance of the examination, there was a discussion of the sharing of information obtained, right?”

“Yes,” he said. 

“In anticipation of getting information worth sharing?” Duckett asked.

“If that arose, yes.”

This report by The Canadian Press was first published Oct. 29, 2020.

Amy Smart, The Canadian Press