CTV National News and even the New York Times got it wrong: Peter Nygard did not consent to extradition when he appeared in court in Winnipeg on Oct. 1. Had he wanted to do so, he would have agreed to a “consent to surrender” (s. 71 of the Extradition Act) – a different beast entirely from the “consent to committal” (s. 70) he signed.

The committal hearing serves little or no purpose in extradition proceedings beyond wasting the time and resources of the accused – and the court. As law professor Anne La Forest has stated, the Act assigns so much discretion to Canada’s minister of justice that it is difficult to imagine what function is left for the extradition judge.

Sadly, rubber-stamping is back in vogue.

Consenting to committal – especially on the heels of the Meng Wanzhou case – is a matter of simple expediency. How could any lawyer argue with a straight face that “human trafficking” as set out in Nygard’s “Authority to Proceed” (ATP) is not “criminal” in Canada? Of course it’s criminal. Consenting to committal sensibly shortens protracted extradition proceedings by excising an utterly pointless exercise.

A more meaningful step follows

Nygard’s lawyers can now concentrate on the next, more meaningful step: they have 30 days to file submissions that the minister of justice (as yet unnamed) should not surrender Nygard for extradition.

In his comments outside the courthouse, counsel Brian Greenspan appeared to be banking on the notion that the minister will, at worst, order Nygard’s surrender for the one charge identified in the ATP: human trafficking. The minister’s staff on the International Assistance Group (IAG) no doubt picked this charge as the most likely of the several charges in the extradition request to be regarded as “criminal” had the underlying conduct occurred in Canada.

Once the committal is a fait accompli, the file is sent on to the minister, supposedly acting “personally” (s. 40 (1)), who typically performs a switcheroo: instead of issuing an order of surrender for the charge in the ATP (as Greenspan expects the new minister to do), in practice the minister orders surrender for the whole host of charges alleged in the original request.

That’s because s. 58(b) of the Act states that the order of surrender must “describe the offence in respect of which the extradition is requested, the offence for which the committal was ordered or the conduct for which the person is to be surrendered.” Without exception, in my experience, the minister has opted to order surrender for all the charges listed in the request, even though only one or two of them were listed in the ATP.

The ‘rule of specialty’ is now meaningless

This renders meaningless the “rule of specialty” – touted by Greenspan as a principle of international law upon which he intends to rely. That rule says that the requesting country will only prosecute the charges or conduct for which the person has been surrendered for extradition.

However, appeal courts in Canada have long held that the rule is for the requesting state to apply at trial – where the rule of specialty gets equally short shrift.

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Nygard and his lawyers will be sorely disappointed if in two months they see the foolscap Order of Surrender with a long list of charges, only one of which was in the ATP.

I have asked the B.C. Court of Appeal to judicially review this “bait-and-switch” process in several extradition cases on the grounds that it amounts to abuse of process. The answer is always the same: s. 58(b) prevails. And each time, the Supreme Court of Canada has refused leave to appeal. The rationale? That once the criminality of one of the allegations is proven, surrender on all counts is fair game.

Hopefully, Greenspan and company will have greater success in challenging this unfair practice if, as is likely, the new minister resorts to the old bait-and-switch trick. It will be an uphill battle against many precedents. And that might mean several more months, if not years, of Nygard mouldering in jail. Unless, of course, the Manitoba Court of Appeal agrees to grant him bail. Nygard is, after all, presumed innocent, no matter how much unaesthetic muck has been cast his way.

Domestic charges in Toronto complicate matters

However, the emergence of domestic charges in Toronto complicates the strategy of both the defence and the Crown.

Typically, where the person sought for extradition also faces charges at home, the IAG will prevail upon provincial authorities not to proceed with the local charges so that extradition will be facilitated. That way, the requesting state gets to pay for the prosecution, and the beleaguered court system in Canada gets to sit on its hands and watch due process taking place in another country. 

This appears to be what has happened in Winnipeg, where charges have not been brought against Nygard by the attorney general, despite several complainants coming forward.

Apparently, the Toronto Police Service did not get the memo.

If Nygard and his counsel thought consenting to committal would accelerate his appearance before a U.S. court (where arguably he has a much higher chance of making bail), that faint hope was dashed by the announcement of the Toronto charges. The minister of justice now has more options, including power to demand assurances from the United States that Nygard will not be released out of custody.

The minister can order a “delayed surrender” (s. 64), declaring that the Canadian charges shall be heard first, before the extradition takes place. Alternatively, the minister can order a “temporary surrender” (s. 66) – provided the U.S. gives Canada “assurance” that the prisoner will be kept in custody the whole time and will promptly be returned to Canada after the U.S. proceedings are completed (s. 66(3)).

Not good news for Nygard

Either way, that is not good news for Nygard.

The best solution for him is for Greenspan to persuade the minister, in submissions due this month,  that he is too old and frail for all of this: the minister must refuse to order surrender where to do so “would be unjust or oppressive having regard to all the relevant circumstances” (s. 44(1)(a)).

If the minister orders that Nygard be surrendered for all the charges listed in the U.S. application, that will no doubt be a strong ground for appeal, since Greenspan has stated his clear position that in his opinion, his client can only be surrendered for the single charge listed in the ATP (albeit for several counts of that charge).  

Familiar ground, to be sure.  But add a year, at least, to the ticking clock.

• Gary Botting is the author of Extradition between Canada and the United States (Brill), Extradition: Individual Rights vs. International Obligations (Lambert), Halsbury’s Laws of Canada: Extradition (LexisNexis) and Canadian Extradition Law Practice (LexisNexis).