Clear irregularities in Huawei CFO arrest

Clear irregularities in Huawei CFO arrest

As the extradition case continues around Huawei CFO Meng Wanzhou, her defence team has started to highlight irregularities in the approach of local law enforcement, which could disrupt the entire case and nullify this highly-politicized extradition.

The succession of irregularities began on 1stDecember, 2018 at 11:15am as three Canadian border services officers stood on the Vancouver International Airport jetway and passengers began marching out of Cathay Pacific Flight 838 after the long journey from Hong Kong. 

The officers were looking for a woman in a “white T-shirt (lettering)/dark pants/white shoes/carrying large purse/bag.” They received the clothing description from an undisclosed source even before the plane had landed. This woman was Meng Wanzhou, chief financial officer of the Chinese telecoms giant Huawei.

One of the border officers, Scott Kirkland, was carrying two “Faraday bags.” The shiny Mylar receptacles are designed to prevent wireless access to electronic devices and prevent them being remotely wiped or altered. This very direction was received from the Assistant US Attorney for the EDNY, asking “any electronic devices which are in the possession of the target at the time of arrest be secured by law enforcement in an RFID or Radio Frequency blocking ‘Faraday Bag’ to prevent wireless signal from remote wiping or altering the devices.”

Thirty-five minutes before the plane landed, RCMP officer Vander Graaf noted, “Finished briefing 3 CBSA (1 Chinese speaking) at gate, will locate phones as per FBI request and place in mylar bags, Gurv [Dhaliwal] to maintain con’t [continuity].”

Scott’s colleague Dhaliwal also wrote in his note at 1645 hours on the previous day, “part of Arrest/seize any electronic devices on Meng to preserve evidence, as there will be a request from FBI.”

“The First Plan”

The miscarriages of justice continued on 30th November, 2018 when Foreign Domestic Liaison Unit (FDLU) of the RCMP received a request relating to Meng’s case from the DOJ on behalf of the US. It is unknown how the US became aware that Meng would be flying to Canada on that day.

At 1850 hours, a meeting took place at YVR between the RCMP and CBSA. RCMP Cst. Yep noted being at the airport from 1850 to 2100, where an arresting plan was developed. The “First Plan” formulated a strategy to “immediately arrest” Meng the next morning by going onto the plane after it arrived at the gate in YVR. 

The “immediately arrest” order was issued by Justice Fleming of the British Columbia Supreme Court on 30th November, 2018, “ALL PEACE OFFICERS HAVING JURISDICTION IN CANADA… to immediately arrest Wanzhou Meng.”

At 2137 hours, Vander Graff noted that, “Peter [Lea] suggested” the arresting RCMP officers would “go on [the] plane and let others leave.”  At 2144 hours, Vander Graaf added “suggested this to Gurv [Dhaliwal]. He agreed, he will reach out to CBSA and Rmd [Richmond] detach to coordinate.”

However, in the meeting at the 9:30am on 1st December, the arresting plan was changed. The RCMP and CBSA officers had decided that the RCMP would not immediately arrest Meng, but rather the CBSA would identify her and deploy their “normal ‘DART’ process” to immediately detain her.

“DART” is CBSA internal term referring to Disembarkation and Roving Team process. As Vander Graaf wrote following the 9:30am meeting, “CBSA will check passports and escort the screening, normal ‘DART’ process, CBSA will check passenger ID.” The reason for revising the plan was never disclosed. None of the CBSA notes or solemn declarations refer to this 9:30am meeting in any way.

In other words, just two hours before Meng arrived in Vancouver, the RCMP and CBSA discussed how the CBSA would use its special inspection powers to detain and “examine” her instead of an immediately arrest ordered form the judge.

Court order abused

After checking her passport and identifying Meng, three CBSA officers immediately detained her while two RCMP officers stood nearby and watched. They stood by during this time with full knowledge of, and complicity in, the violation of Justice Flemming’s order. At no point did the CBSA or the RCMP advise the Applicant of her right to counsel, contrary to s. 10(b) of the charter.

The CBSA officers then took her to the secondary area of YVR. By design, the CBSA officers neither arrested her nor advised her of the reason for her detention, contrary to the Charter.

“Basically, you are telling the court it’s not immediate,” extradition lawyer Richard Kurland said. “It makes no difference if it’s the RCMP or the CBSA or whoever. The court ordered immediate arrest; the RCMP and the CBSA both have the authority to arrest. Whoever went first had the obligation by court order to immediately arrest, not to wait three hours.”

Compulsion of passcodes and unlawful transfer to the RCMP

At 12:14 pm, after all Meng’s bags had been examined, Kirkland listed the additional electronic devices which had been found, including, a “rose gold/whit (sic) Apple iPad with Tan flip cover, and Pink MacBook with drawing of female head and shoulders from behind, and 256 GB Cruze Glide 3.0 black USB key.” The electronic devices were requested by the FBI.

Partway through Dhillon’s questioning of Meng regarding her and Huawei’s dealings in Iran, Kirkland compelled Meng to provide the passcodes to her electronic devices. Kirkland then wrote down the passcodes in his notebook. In the meanwhile, Kirkland also wrote down the passcodes on a separate “piece of paper” placed alongside Meng’s electronic devices on the counter. 

According to the RCC, “on the arresting the plaintiff, the RCMP took control of her belongings, including the Electronic Devices and the Phones. At the same time, the RCMP took possession of the paper containing the phone numbers and passwords for the Phones.” 

The Crown lawyers later admitted before the BC Supreme Court that Meng’s electronic devices and passcodes were passed to police by mistake.

In an email included in an affidavit filed with the court, Vancouver airport CBSA chief of passenger operations Nicole Goodman said she wrote to the RCMP after learning of the error.

"I advised the RCMP the passcodes should not have been provided by CBSA as the passcodes were CBSA information obtained during the CBSA examination, and that the passcodes could not be used to access the devices nor shared with a third party (i.e. other law enforcement agency)," Goodman wrote.

Sgt. Janice Vander Graaf’s notes from 12th December, 2018, say that another officer, Const. Gurvinder Dhaliwal, told her that Staff Sgt. Ben Chang emailed the devices’ serial numbers, SIM cards and international mobile identity numbers to FBI liaison John Sgroi.

The international mobile identity numbers allow US authorities to find out calls made and received, phone numbers, time and duration of calls and the locations of cell towers that connected the calls, according to the defence.

Covert criminal investigation under the guise of a routine immigration examination

The CBSA officers continued to question Meng without revealing the existence of the Arrest Warrant. Dhillon stated in her Solemn Declaration, “at approximately 1300 hrs… the subject repeatedly asked why she had been selected for secondary inspection, and on this occasion, she had posed the same question to myself.”

Instead, Dhillon did not answer her question or disclose that she was being detained by the CBSA pending her arrest by the RCMP. Rather, Dhillon’s questioning focused on Huawei’s business dealings in Iran, which is related to the US indictment.

According to defence testimony, Meng’s warrant called for her “immediate” arrest, yet border officials detained her first for three hours, ostensibly to determine if she was admissible to Canada. However, there was never any chance Meng would have been turned away, given the arrest warrant awaiting her. Officials never formally admitted her anyway — her immigration status in Canada remains in limbo.

Scott Fenton, a defence lawyer for Meng Wanzhou, told B.C. Supreme Court that border officials already knew Meng was facing charges in the United States by the time she got off her flight from Hong Kong. That means officials also knew that she would be arrested and taken before the courts, that they had no power to remove her and that they could already report her as inadmissible because of the allegations she faces in the United States, he said.

“There was no need for this lengthy examination of the applicant,” Fenton told the court.

He argued the provisional arrest warrant calling for her “immediate” arrest should have taken precedence over a customs and immigration examination.

Meng’s Charter rights abused

Throughout the three-hour unlawful detention by the CBSA, members of the RCMP continued to monitor the situation and provide updates to counsel at the DOJ. At 12:25pm, Lundie had a phone call with DOJ counsel Swift updating the circumstances. At that time, Meng had been detained for over an hour without having been advised of the Arrest Warrant or her Charter rights. The DOJ did not intervene or advised the RCMP or the CBSA that they were violating the terms of the Arrest Warrant, or that they were failing to afford her Charter rights.

Similarly, around 12:35pm, Vander Graaf noted, “Call from NHQ DOJ. Kathy. Looking for update. I stated she is with CBSA in secondary screening, and once complete she will be arrested. She will update deputy minister + FBI.” 

Namely, the DOJ was briefed in real time as to the execution of the delayed arrest plan.

On the other hand, Lawyers for Meng Wanzhou are alleging that Canada's national spy agency (CSIS) was in on a plan for border officers to detain the Huawei executive for hours before her arrest at Vancouver's airport and was mindful of the political implications of her arrest.

“The author of the CSIS report also was aware that the arrest of Ms. Meng would be a high-profile political event, saying 'the arrest is likely to send shockwaves around the world ....” The CSIS report was also preoccupied with when the news of Ms. Meng's arrest might become public and states that the timing of the arrest 'may delay Chinese recognition of the event,'” the defence document says.

“CSIS's knowledge that Ms. Meng's arrest would not be effected until 'approximately 16:00 Vancouver time' is troubling, since it is consistent with CSIS knowing that the CBSA would first detain, search and interrogate Ms. Meng upon her arrival at YVR at 11:30 a.m., and that there would therefore be a multi-hour delay before Ms. Meng's eventual arrest by RCMP,” the defence says in the document.

“Meng was tricked,” Scott Fenton, one of her lawyers, told the court, laying out how the Canada Border Services Agency, police and the US Federal Bureau of Investigation unlawfully used the pretext of an immigration check to get Meng to disclose evidence that could be used against her.

FBI's involvement consciously obscured

The CSIS report “makes plain” that not only was CSIS involved in communicating with the FBI and others regarding the planning of Meng's arrest but was conscious of obscuring the FBI's involvement, the defence team alleges. “The FBI will not be present in an effort to avoid the perception of influence,” the CSIS report says.

The officers on scene also continued to coordinate with the FBI through the DOJ. At 12:30pm, Vander Graaf wrote in her notes, “Prev [previously] advised that [Meng] has 8 bags. Gurv [Dhaliwal] contacted DOJ to see if FBI had requested bags…”

At 1600 hours, Vander Graaf noted, “Peter [Lea] request I call attaché.” 5 minutes later, she further noted, “Sherri Onks msg [message].” Sherri Onks is the Assistant Legal Attaché for the FBI located in Vancouver. 1 minute later, she noted, “Msg Kevin Vorndran FBI.”

At 1607 hours, Vander Graaf noted, “she will advise DOJ and FBI.” Later she continued in her note, “Update Kevin Vorndran [FBI]”, “Spoke to Sherri Oinks + update her.”

Eventual arrest under the Warrant

At 2:15 pm, Katragadda took Meng to a room in secondary where, for the first time, the RCMP appeared and informed her of the reason for her arrest and, in turn, her right to counsel.

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