Canada can – and should – facilitate release of the Two Michaels

For the past year the Canadian government and Minister of Justice David Lametti have been clear that they don’t have the power to stop the extradition proceedings against Huawei’s chief financial officer Meng Wanzhou.

“Canada has an independent judicial system that functions without interference or override by politicians,” Trudeau told reporters during one of his daily press conferences on COVID-19.

The Department of Justice told investigative journalist Justin Ling that "the Minister does not personally make any decisions related to an extradition proceeding until and unless the judge commits the person for extradition."

And David Lametti told the Toronto Star that he could not politicize the legal process, “as a matter of a political decision, created what I think is an excellent process, which is to say a section in the government will treat this [Meng] case neutrally as it runs through the courts, and the minister of justice will not have any say in the matter.”

But, the recent release of a legal opinion provided to the government by criminal lawyer and extradition expert Brian Greenspan, supported by Allan Rock, a former Liberal justice minister, and by former Supreme Court justice Louise Arbour, among others, persuasively exposes the government’s prevarications about their authority and powers in the Meng case.

Put simply, the government can stop the extradition proceedings if it wants to.

The question is, why has the government been so consistently misleading about the scope of their legal powers when it comes to the Meng case?

It may be that the government and Minister Lametti are hesitant to make any decisions in the Meng case after being accused of interference in the justice system in the SNC-Lavalin business.

If this is the case, then they have really learned nothing.

In the SNC-Lavalin affair the government, through the prime minister and his surrogates, attempted to pressure then attorney general Jody Wilson-Raybould to intervene in an ongoing criminal case against SNC-Lavalin by offering the company a deferred prosecution agreement.

This type of pressure was inappropriate and contrary to the rule of law.

It is a constitutional principle in this country that the attorney general must act independently of partisan and political concerns or pressure when supervising prosecutorial decisions. This is why the SNC affair was a scandal.

But criminal law and extradition law are apples and oranges, and it would be a mischaracterization to classify extradition as a matter of criminal law.

Extradition is, at its core, a matter of diplomacy and international relations. It is for this reason that the Extradition Act explicitly allows the minister of justice to intervene in an extradition proceeding, even when it is before the court.

Section 23 of the Extradition Act invests the minister of justice with a broad and unfettered discretion to amend or withdraw the Authority to Proceed in an extradition at any time, even when the matter is before the court: “The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention.” 

So, while the attorney general must be free from political and partisan concerns regarding prosecutions, the minister of justice is explicitly permitted to consider politics when it comes to extradition.

It is contrary to the rule of law and an abdication of the important role the government plays in the extradition process to suggest that the minister of justice must wait for the court to order a committal before he can take action.

As expertly stated in the Greenspan opinion, “if the Minister concludes, at any time prior to committal and for any legitimate reason, that the Authority to Proceed should be withdrawn, the Minister not only has the authority, but the obligation to end the extradition proceeding.”

The question, then, is not can the government intervene, but should it?

As Allan Rock told The Globe and Mail, Canada needs to have “a full debate based on a legitimate foundation of facts, rather than an incantation of rubrics, like ‘rule of law’ and the ‘independence of the courts’ and the 'sanctity of the judiciary.’”

And there are good reasons to conclude that the extradition of Meng should be halted.

The lives of two Canadians, Michael Kovrig and Michael Spavor, hang in the balance – all because of the United States’ extradition request.

And it seems that, at least according to the president of the United States, the prosecution of Meng is not driven by virtue, but because Meng is seen as a useful bargaining chip in U.S. trade negotiations with China. This is not a wildly speculative proposition; U.S. President Donald Trump has consistently dangled the option of dropping charges against Meng in exchange for a beneficial trade deal.

Those who say that releasing Meng would be a capitulation to the bullying tactics of China may want to look at the self-interested bully to our south who is using Canada as a political pawn.

Additionally, the U.S. prosecution of Meng is in direct opposition to Canada’s stated foreign policy. Trump’s punitive Iran sanctions form the foundation of the charges Meng faces, and they are not Canada’s sanctions.

In fact, Canada strongly supported the Iran nuclear deal, and we (and the rest of the world) did not join the Trump administration when, in 2017, it unilaterally re-imposed extensive sanctions against the Iranian regime.

By acting as a U.S. stooge in the Meng extradition, Canada is supporting that country’s policy towards Iran while undermining its own.

In these circumstances, the minister would be in full compliance with the rule of law in exercising his authority under the Extradition Act in the best interests of the country.

Yes, there are also legitimate arguments that Lametti should not exercise his power under the Extradition Act.

Some would say that Canada does not and never should negotiate in hostage situations, but according to Robert Fowler, a former hostage himself, those bright lines have never existed.

Some would say that Canada should stand up to the bully across the ocean and ignore the bully in our own backyard. But we have angered the U.S. before, such as when we said ‘no’ to the war in Iraq, and the sky did not fall.

Some might say that Canada should not let China set our foreign policy, but are we content to let the United States and Donald Trump drive the bus?

Reasonable people may disagree with the “should we” question.

But it is unreasonable and dangerous to shut down that debate, before it can even begin, by misrepresenting the legal reality and applying fictional ministerial handcuffs.

That is not leadership. And it is certainly not respect for the rule of law.

Disclosure: Louise Arbour is my mother-in-law. I don’t often disagree with her, but when I do I am never shy to say so. Obviously, I agree with her on this one.