VANCOUVER -- For the first time in nearly two years, Meng Wanzhou has come face-to-face with the Canadian law enforcement officials who were involved in her questioning and arrest.
The Huawei CFO’s defence team alleges that Canadian and U.S. authorities plotted to delay her arrest when she landed in Vancouver in order to interrogate her and gather evidence that could bolster the U.S. fraud case against her.
All this week in B.C. Supreme Court, Meng’s defence team will have the chance to question those officers.
They will be looking for gaps and inconsistencies in testimony that may help prove their allegations of a “covert criminal investigation” among authorities.
Meng faces charges that she misrepresented Huawei’s relationship with a subsidiary doing business in Iran in a 2013 presentation to HSBC bank, allegedly placing the bank at risk of violating U.S. sanctions. She and Huawei have repeatedly denied the charges.
Her team alleges what transpired at YVR is such a serious violation of Meng’s Charter rights, what’s known as an “Abuse of Process,” that the extradition case against her should be thrown out.
Both RCMP and Canada Border Services Agency (CBSA) deny any wrongdoing. Both declined to comment further on the case while it is before the courts.
Here are five questions surrounding what transpired on Dec. 1, 2018, at Vancouver International Airport, and the answers we have so far:
Why didn’t RCMP arrest Meng on the plane?
Defence alleges that the initial plan, for RCMP to arrest Meng onboard, was altered in the hours before her arrival to let border services agents take the lead.
Const. Winston Yep, the Mountie who eventually arrested Meng after she was questioned by CBSA officers for nearly three hours, gave two reasons in sworn testimony: First, YVR international arrivals was CBSA’s jurisdiction; and second, he was concerned about public safety.
Defence lawyer Richard Peck said he didn’t buy Yep’s testimony that he was worried about passenger safety or that he didn’t know what Meng was capable of.
“My view is that is not an honest answer,” Peck said. “That safety was never an issue.”
Yep responded: “There’s still a risk there.”
Yep also refuted that the plan had “changed” and testified it was just a “suggestion” from a supervisor one day earlier to take Meng into custody onboard the aircraft.
But doesn’t the arrest warrant call for Meng’s immediate arrest?
Yes. It reads, “You are hereby commanded to immediately arrest Wanzhou Meng,” but the RCMP’s Yep testified he took that to mean as soon as practically possible.
The three-hour delay to allow CBSA officers to screen Meng to see if she was admissible to Canada, Yep testified, was not intentional and in his view “not unreasonable,” he said.
“We had no influence with the CBSA,” Yep said. “That was their process.”
Yep testified that he watched from a nearby office as CBSA officers, who were aware of the arrest warrant and the U.S. fraud charges, questioned Meng.
Two other RCMP officers were also within view as Meng came off the plane and border officers escorted her to secondary screening, after placing her mobile phones in mylar bags at the request of the RCMP, who were executing an FBI request.
Did the CBSA officers ask Meng about the U.S. criminal charges?
This is where it gets murky.
Border services officer Scott Kirkland, who began testifying Wednesday, said it would be an abuse of CBSA power for officers to ask questions that would support criminal investigations.
Kirkland explained that at a Canadian port-of-entry like YVR, the expectation of privacy is lower.
Passengers are not afforded rights – like access to a lawyer – that they would otherwise have if they were facing charges or under arrest, he said.
Kirkland testified that, as the assisting agent, he and his CBSA colleague wanted to ask questions that surrounded national security and criminal concerns that would help them decide whether Meng was admissible to Canada.
But a sworn statement previously released by B.C. Supreme Court shows an acting CBSA superintendent, who hasn’t testified in court yet, asked Meng if Huawei did business in countries “it was not supposed to.”
“It’s fairly clear to me that (CBSA) were asking questions that were based upon discussions with the American authorities,” UBC political science & international law professor Michael Byers said.
Though Byers cautioned: “That’s not necessarily improper.”
In his testimony, which will continue Thursday morning, Kirkland said he didn’t have any direct contact with U.S. authorities about the case, nor did he share any information with foreign law enforcement.
What about Meng’s phones? Didn’t CBSA confiscate them?
Kirkland testified that he took possession of Meng’s Huawei phone and her iPhone in the jetway. Meng was also carrying a MacBook and iPad.
Some two hours into questioning, Kirkland testified he asked Meng for her passcodes to her phones, because he believed CBSA would be going through them as part of its admissibility exam.
Kirkland said he wrote the passcodes down on a loose sheet of paper and in his notebook.
He testified he typically did both, so that he could hand the “sticky note” back to the passenger with their passport when the exam was finished to remind them to change their passcodes.
Instead, once Meng was turned over to Mounties, that loose sheet of paper ended up in the hands of the RCMP.
Kirkland testified it was a mistake and admitted it was a violation of the Privacy Act.
He said had he realized he’d left it on the counter with Meng’s devices, he would have “grabbed it back.”
RCMP have maintained they did not examine Meng’s devices.
And, while defence alleges Mounties turned over device information, including serial numbers, to the FBI, the RCMP deny anything of the sort ever happened.
Why does any of this matter?
Meng’s lawyers plan to use what they learn from the cross-examination of these witnesses when they go before Justice Heather Holmes in February 2021 and argue the extradition case against their client should be halted.
From a political perspective, UBC’s Byers says if defence can demonstrate there was a conspiracy by U.S. and Canadian authorities, “that will strengthen the government of China’s assertions that this was cooked up … that this is not a regular extradition, that this was a political move directed against China.”
Meng’s lawyers also plan argue that the U.S. is using her as a political pawn in the trade dispute with Beijing, and that the charges are politically motivated.
China has charged two Canadians, former diplomat Michael Kovrig and entrepreneur Michael Spavor with spying.
It’s widely understood their detention is a direct retaliation by Beijing for Meng’s arrest.
Huawei is considered China’s tech crown-jewel, and the outcome of the case could have significant implications for Canada’s relationship with China and Canadians in China for generations to come.
