The rule of law is about more than just what the law allows

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At the heart of last week’s “Letter to the Prime Minister” from 19 eminent Canadians is an alluring proposition: that we can secure the freedom of the two Canadians held hostage by the government of China at no cost beyond the release of Meng Wanzhou, the Huawei executive wanted by the United States on charges of bank fraud.

We can intervene politically in a judicial proceeding at the behest of a hostile dictatorship, free a person credibly accused of a serious crime rather than extradite her to a fellow democracy, and pay no price for any of it: for rewarding China’s use of “hostage diplomacy,” for repudiating our obligations to our extradition treaty partners, or in terms of our own commitment to the rule of law.

The Minister of Justice has only to withdraw his “authority to proceed” against Ms. Meng, and everything else falls into place: her release, followed by the release of “the two Michaels,” businessman Michael Spavor and former diplomat Michael Kovrig. But there the chain of consequences ends.

No other Canadians are taken hostage in response, by China or anyone else, with no message having been sent about the usefulness of this tactic in dealings with Canada. The U.S. takes no retaliatory action, or none that need concern us.

Canada’s international reputation as a trustworthy ally suffers no loss for breaking faith, not only with the U.S., but with those other countries whose citizens China has also kidnapped – countries that had hoped to persuade China, by their refusal to make similar concessions, that its tactics would fail.

To be sure, the 19 luminaries allow, “it does not sit well with anyone to yield to bullying or blackmail.” But this appears to be little more than an offence against good taste. Indeed, far from worrying that yielding to China’s demands in response to such “repugnant” tactics might encourage China to make more such demands backed by the same tactics, the 19 fret that, in fact, failing to give China what it wants would invite it to “escalate” by “detaining more than two Canadians.”

Conversely, having bought the hostages’ release, they argue, Canada would at last be freed to “take the tough steps” needed to “redefine its strategic approach to China.” Unless, of course, China were to take more of our citizens hostage. In which case, I don’t know, we offer to ransom them with a few more?

These are serious people – former party leaders, diplomats, civil servants and the like. But these are not serious arguments. And of all the unserious suggestions in their letter, the silliest is the notion that the minister’s intervention on behalf of Ms. Meng would do no damage to the rule of law.

The foundation for this belief appears to be the fact that the minister has the power, under Section 23 (3) of the Extradition Act, to do so. The circumstances in which that power was exercised, or the motives for it, would seem irrelevant. The minister could do so at the point of a gun, literal, or, as in this case, metaphoric: It would still be “lawful.” The whole edifice of extradition law may be devoted to ensuring the prisoner is transferred within the confines of due process and the protections of human rights, rather than as a pawn in political games, but should the minister take it into his head to do otherwise, that’s all she wrote.

In support, the Magnificent 19 offer what they reverently refer to as the Greenspan Opinion – a note from criminal lawyer Brian Greenspan pointing out the existence of Section 23 (3), as if this were either surprising or especially significant. In response, let me introduce you to the Bossenmaier Memorandum. Written shortly after Ms. Meng’s arrest in 2018 and unearthed by The Canadian Press, it is addressed to the Prime Minister from his now-retired national security adviser Greta Bossenmaier. In it, she advises that the power in question has almost never been used: just 12 times in the two decades it has been in effect, usually in response to due-process concerns. Pointedly, “there are no examples of the minister discharging a case for political or diplomatic reasons.”

The rule of law is about more than words on paper, and a minister’s powers are not defined only by what the law allows. They are embedded in a set of expectations about how those powers will be used – namely, in conformity with broader expectations of justice and fairness. Yes, it’s an extradition, not a prosecution. But the idea that powerful people should be able to appeal to powerful friends to escape from uncomfortable legal situations has been rather too freshly litigated in this country to overlook, even if some of the powerful seem prepared to do so.

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