Much has been made of the open letter to Prime Minister Justin Trudeau from the “Notable 19” suggesting what amounts to a prisoner swap: Meng Wanzhou for Michael Spavor and Michael Kovrig. 

The letter informed the prime minister what I have been yelling to deaf ears for a year and a half: that the minister of justice has the discretionary power under s. 23(3) of the Extradition Act to halt extradition proceedings whenever he wishes.

This is not news. Section 23(3) has been unchallenged law since the act was passed by Parliament in 1999. That act is a “code” created by our lawmakers, which in the absence of precedent must be followed to the letter, especially where, as here, the national interest is jeopardized.

For a year and a half now, when asked about the Meng case, the PM and Minister of Justice David Lametti have uttered the same mantra: that they cannot act because they are bound by the rule of law. From this, they go on to a false conclusion: that they must await the court’s decision.

Misunderstanding the rule of law

Yes, we are a country bound by the rule of law. But in this case following the rule of law implies exercising discretion under s. 23(3), which specifically states the authority to a court to proceed with an extradition can be withdrawn, at which point the court shall discharge the person sought.

The Department of Justice official position on s. 23(3) is that the minister of justice ignores it as a matter of “policy” until the matter is resolved by the courts. However, this “policy” is founded on a misreading, indeed a misapprehension, of the provision.

Section 23 appears in the act immediately before the provisions for a hearing, and read in context applies directly to authorizing or terminating the authorization of an extradition hearing. It is therefore an important safety valve that allows the minister to step in when it is politically expedient for him or her to do so.

This safety valve is particularly beneficial to the administration of justice because once the court is informed of the minister’s executive decision not to proceed, it is compelled to terminate the proceedings where, as in the Meng case, ultimate surrender is unlikely because it would not be in the national interest.

Completely different sections of the act (sections 40-47) govern the minister’s decision not to surrender a person for extradition following a judge’s decision to commit. Section 23, by contrast, pertains to amending the authority to proceed, and, importantly, withdrawing that authorization – a decision which stops the court hearing dead in its tracks.

Delay may be a threat to national security

Department of Justice policy postponing this important discretion thwarts an important tool of international diplomacy and may ultimately be a threat to national security. This is especially so in the Meng case, where Chinese officials appear to have a far better grasp of the powers granted to the minister of justice under Canadian law than the minister himself.

Lametti came to his portfolio in the wake of the SNC Lavalin controversy, in which the prime minister tried to assert executive discretion to delay prosecution, as suggested by the deputy attorney general, only to be rebuffed and rebuked for his efforts by the former minister of justice. 

Fearing a replay of that series of unfortunate events, the prime minister and new minister of justice proceeded to dig a hole for themselves by ignoring the several safety mechanisms such as s. 23(3) that anticipate situations like the Meng case, allowing the minister to stop extradition proceedings in the national interest.

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Unfortunately, the usually rational prime minister has lost perspective in the Meng case, perhaps because of the sour political climate in which it arose, but more likely because China saw from the outset precisely what Canada, in its naïveté, could not see: that the United States was determined by fair means or foul to suppress Huawei and its 5G technology.

The United States saw a way of accomplishing this by including Meng’s name on an indictment for conduct that she is alleged to have committed beyond the ordinary jurisdictional boundaries of either Canada or the U.S. What better way to squelch Huawei’s corporate aspirations in North America than to make a lame accusation against Huawei’s CFO?

Like a young call girl, Canada has long been groomed by the United States to act precipitously to give teeth to otherwise facile provisional warrants, in this case by ordering Meng’s arrest and detention. Not just China, but any objective observer would regard her arrest as arbitrary – even the U.S.

The justice ministry and the prime minister were too blinkered to comprehend that the American case against Meng was politically motivated and arbitrary from the outset; an attempt by the U.S. government to slap down the upstart Huawei before it could get a foothold in the North American 5G market.

In that enterprise, of course, the United States has already succeeded, with Canada’s help.

Refusal is almost Napoleonic

Why has the prime minister been so dogmatic – almost Napoleonic – in his stubborn refusal to allow the minister of justice to exercise his Parliament-sanctioned discretion to let Ms. Meng go? Because China quickly reciprocated by arresting Michael Kovrig and Michael Spavor.

However, it is a serious mistake to link Meng’s extradition proceeding to the incarceration of the two Michaels. The outcomes should not be tethered together, let alone joined at the hip. And this is where both  Trudeau and the Notable 19 have missed the mark.

The PM has railed against China for the “arbitrary detention” of the two Michaels. But from China’s point of view, the provisional arrest of Meng was equally “arbitrary,” especially since the initial U.S. indictment was politically motivated. 

True, Canada is a mere patsy – collateral damage in this heavyweight bout between the United States and China, but it was the U.S. that flaunted the rules of engagement by indicting Meng in the first place.

The point is, Canada – not the United States – has custody of Meng, and China is all too aware that s. 23(3) provides the mechanism by which Canada, without any repercussions whatsoever, can free Meng. Instead of being an aider and abettor of U.S. bullying, Canada can silently call “Foul!” on both teams, and stop the entire process.

Finger-pointing has to stop

Canada’s support of provisional warrants, where persons presumed innocent are incarcerated arbitrarily for months before their extradition proceeding even starts, cannot be said to be a fair process, any more than China’s detention of former diplomats and businessmen can be said to be fair. That’s where the finger-pointing begins – and where it should end.

Let’s grow up. Both countries have acted arbitrarily. But in mindlessly rubberstamping the U.S. request for Meng’s provisional arrest, Canada was the first to act arbitrarily. So we should be first to take steps to ameliorate the situation by exercising executive discretion under s. 23(3), no strings attached.

This will leave China with two Canadians in custody on questionable grounds. The pressure will mount from within Canada for a resolution of that situation without China being able to say, with regard to Canada, that the pot is calling the kettle black. Canada will once again be comfortable in the kitchen.

With respect to the Meng case, I call on the prime minister to get off his high chair. Direct the minister of justice to exercise the discretion specifically given to him by Parliament under s. 23(3). China will then be in a position to make concessions to the two Michaels, without losing face.

• Gary Botting is the author of half a dozen books on extradition, including Halsbury’s Laws of Canada – Extradition (LexisNexis), Canadian Extradition Law Practice (LexisNexis) and Extradition between Canada and the United States (Brill).