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Justice minister has statutory discretion to drop extradition proceedings

published February 12, 2019

By Dr. Gary Botting for AdvocateDaily

The online edition of South China Morning Post recently trumpeted, “Donald Trump could change the course of Meng Wanzhou’s ‘years-long’ battle against extradition.” The print edition proclaimed, “Meng faces long battle in politically charged case.” In its summary, the article stated: “Canada usually complies with extradition requests but the China-US trade war — and the US president’s apparent willingness to intervene in the case — could make the difference this time.” That analysis presupposes that the United States seeks the extradition of Ms. Meng for a political purpose.

Put it this way. If everything goes against Ms. Meng, and she is extradited to the United States and convicted and sentenced to 30 years, would there be any doubt that she would be considered, by all parties, a political prisoner?

In the short term, the more Trump and other politicians or bureaucrats politicize the case, the more ammunition Minister of Justice David Lametti has to make the decision not to initiate the extradition process. This may be why the outspoken former ambassador to China, John McCallum, was dismissed by Prime Minister Justin Trudeau, who has declared again and again that we are a nation governed by the “Rule of Law” — implying that extradition decisions should be made by applying the law without interference by officialdom or by exercise of executive discretion.

However, extradition is and always has been discretionary. A plain reading of the Act demonstrates that Parliament intended the minister of justice to have broad discretion over the extradition process, both at the beginning and at the end of the extradition process.

At the beginning, Mr. Lametti and his staff in the International Assistance Group (IAG) must review the allegations made by the requesting state in a certified document known as “the record of the case” (ROC). If the minister decides that the ROC makes out a case against the person sought, his staff will draft a short document called an “authority to proceed” (ATP). The ATP identifies Canadian offences which “correspond” to the offences alleged by the requesting country. Counsel for the Attorney General will then file the ATP with the superior court in the jurisdiction where the person has been found.

In practice, staff lawyers set out in the ATP the minimal or “lowest common denominator” corresponding Canadian offences that could garner a maximum sentence of two years or more. For example, Ms. Meng is accused, among other things, of “wire fraud”, which originated as a racketeering offence with a maximum sentence of 20 years. The ATP, if one is issued, is likely to identify “fraud” as the corresponding offence. If “fraud” is criminal in Canada, the argument goes, then any variety of it more serious than common fraud must also be criminal. Thus, the Canadian Department of Justice complies with the “dual criminality” rule without getting bogged down in the details. They are likely to use a similar tactic to get around the fact that Canada does not criminalize breaches of U.S. sanctions against Iran. Alleged “misrepresentation” can also be characterized as “fraud.”

If the minister or his staff do not sign off on an ATP within 30 days, the minister must direct the court to discharge the person sought (s. 14). That is the stage we are at now: The minister has 30 days either to initiate an ATP or to direct the court to issue a discharge. The Act allows the minister to apply to the court for an extension of time, if that is required.

Once the minister issues an ATP, an extradition hearing is scheduled. However, the Act gives the hearing judge very limited judicial discretion. Under s. 29, the judge has to determine two things: whether the person appearing before him is in fact the person sought by the requesting country; and whether a properly instructed jury could (not “would”) convict for the “corresponding” Canadian offences set out in the ATP.

The judge also determines procedural matters, such as whether the ROC can be rebutted by evidence led by the person sought (which is allowed only rarely); and whether the Canadian Charter of Rights and Freedoms has been honoured. Charter questions are confined to whether the integrity of the hearing itself has been preserved.

So, where do we stand in the case of Meng Wanzhou?

The short answer is, We haven’t even started.

Ms. Meng was arrested on a provisional warrant and granted bail until the U.S. had a chance to perfect its application by filing a certified ROC (which has now been done) and the minister and his staff have a chance to review the ROC to determine whether to issue an ATP. The minister is expected to make this decision by Ms. Meng’s next appearance date on March 8.

Sections 14 and 15 of the Act unambiguously state that to begin the extradition process, the minister must either issue an ATP or discharge the person sought. Although the minister can delegate most of his duties to staff lawyers, when a case is this controversial, it behooves the minister personally to gather up the reins and take responsibility. That means exercising executive discretion — before the matter even comes before the courts. Acting now could avert years, if not decades, of geopolitical upheaval.

Mr. Lametti has said that his involvement doesn’t begin until towards the end of the extradition process. Chalk that up to inexperience. His staff lawyers might be eager to draft and sign off on the ATP, but it is the minister of justice who has responsibility for oversight of that exercise.

Section 40(1) of the Act states, “The minister may, within a period of 90 days after the date of a person’s committal to await surrender, personally order that the person be surrendered to the extradition partner.” Parliament has given the minister broad discretion. Ultimately, it falls to David Lametti to stop the train.

Now an extradition lawyer, Gary Botting used to be a journalist with the South China Morning Post.