On December 1, 2018 Canadian authorities, at the request of the US government, arrested Huawei executive Meng Wanzhou at the Vancouver International Airport.  The US wanted her extradited to the US to face charges of fraud.  Nine days later China arrested two Canadians, Michael Spavor and Michael Kovrig.  After 557 days of interrogation and imprisonment, with the lights kept on day and night, they were formally charged this month with espionage, a crime punishable by life in prison.  During this time China had insisted that there was no connection between Canada’s arrest of Meng and China’s arrest of the two Michaels.  But that changed earlier this week.

The Chinese government now says that if Canada sets Meng free, which would be consistent with the rule of law, it could affect the fate of the two Canadians.  Should federal Justice Minister David Lametti now exercise his statutory authority to end the extradition case against her and let her go home?

Canada’s Confusing Position on the Meng Extradition

Prime Minister Justin Trudeau has insisted that he will not intervene in the Meng case. “We’re not considering that,” Mr. Trudeau told the Globe and Mail on June 22:

“Canada has a strong and an independent justice system. … Anyone who is considering weakening our values or weakening the independence of our justice system doesn’t understand the importance of standing strong on our principles and our values.”

Out of sympathy for the families of the two Michaels, former Liberal justice minister Allan Rock and former Supreme Court Justice Louise Arbour were among several distinguished Canadians who signed a letter to the Prime Minister to bring these two Canadians home.  This letter relied upon a legal opinion from Brian Greenspan, a distinguished Toronto lawyer experienced in extradition cases. Greenspan explained that the Justice Minister has full legal discretion to decide, on political grounds, whether the legal proceedings against Meng should continue or be terminated.  Then, on June 26, another letter to Mr. Trudeau signed by 20 distinguished Canadians opposed allowing China to succeed with its tactics.

What Does the Rule of Law Mean in Extradition Cases?

Extradition is not like a criminal prosecution.  Criminal prosecutions must be decided by the courts, and therefore, must be entirely non-political.  Extradition is legally subject to a political decision, authorized by section 23 of the Extradition Act.  

Section 23 of the Act is clear:

(3) 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.

The rule of law allows the Minister to decide on political grounds, at any time, regardless of the court. Therefore, the question is whether that political decision should be made before, during or after any judicial extradition proceedings.

Of course, the fact that Mr. Lametti can make a political decision now, regardless of the court’s extradition proceedings, does not necessarily mean he should do so.  There may be valid legal and political reasons why he should not.   However, the Prime Minister’s response quoted above is not a clear reason.

Mr. Trudeau went further on June 25, but still appeared confused.  First he said:

“The bigger question is whether or not we want China or other countries to get the message that all they have to do to get leverage over the Canadian government is randomly arrest a couple of Canadians.”

But then he said, confusingly:

“We need to continue to be absolutely clear that Canada has an independent judiciary and those processes will unfold independently of any political pressure – including by foreign governments.”

For the Minister to make the decision that the law allows in no way threatens or compromises the independence of the judiciary.

Misunderstanding The Rule of Law?

There is some irony in the Prime Minister’s earlier willingness to interfere personally in what was supposed to have been the non-political prosecution of SNC-Lavalin (which I have criticized here).  That was contrary to the rule of law.  But he now objects to making a political decision that is entirely consistent with the rule of law, as it is expressly permitted by the law.

Don’t Give in to Hostage Takers

Releasing Meng now has been criticized as giving in to hostage taking demands by China.  Mr. Trudeau has said that he is not going to do that.  But he would have been clearer if he had admitted the obvious, and said something like this:

“I can intervene under our law, or my Minister of Justice can, but we won’t do that. We will not give in to hostage-taking, and we need no lectures from China on the rule of law.  We want this extradition decision to be evidence-based rather than political.”

Is There an Evidence-based Case for Extradition?

Is there an evidence-based case for extradition? Without having read all the US evidence filed in court I can’t judge.

Mr. Greenspan’s opinion says that the US evidence filed in the extradition request is so weak and speculative that Meng should not even be before the court.  If he is right, apart from the politics, there is no legal reason to keep court proceedings going for several more years, only to end without extradition.  If he has not already done so Mr. Lametti should obtain an independent legal opinion from a lawyer with expertise in extradition law. If Mr. Greenspan is right Mr. Lametti could make a political decision now, based on the evidence rather than Chinese pressure; if he is wrong, then keep on going.

Canada’s Dilemma

Canada is in the difficult position of having to anger one of two economic giants – the US or China – each with the economic power to make life miserable for us.  What should our government do?

Releasing Meng now has the risk of angering the US, which sees China as its #1 security and economic threat.  It also signals to China and other nations that Canada folds when its citizens are arrested and mistreated.

On the other side, Meng and Huawei are Chinese ‘royalty’, icons of Chinese technological leadership.  If the Trump administration sought her extradition on flimsy legal grounds, to put her through a lengthy US judicial process for US political reasons, it is the US that first put Canada on the spot.

Caught between the two superpowers is the growing humanitarian concern for these two Canadian men and their families, while Meng lives in comfort in her Vancouver mansion.

If I was in the shoes of Messrs. Trudeau or Lametti I would find it excruciatingly difficult to balance these competing considerations in the national interest.

Perhaps some of you, my readers, will comment to tell me what you would do, and why.

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