Richard Fadden is a former national security adviser to the prime minister, director of the Canadian Security Intelligence Service, and deputy minister of national defence.
In recent days, a number of distinguished lawyers have pointed out that Canada’s Extradition Act allows the minister of justice to stop extradition requests being considered by the courts, at any point in the process. Even for a lapsed lawyer like myself, this is not a surprise. The act is very clear, and this has been known by officials and ministers since the Chinese state first detained our two fellow citizens, Michael Kovrig and Michael Spavor.
What is perhaps less clear, however, is the convention or tradition surrounding the use of that power.
In Canada, applying the law requires two perspectives. The first is the “black letter” law, or the actual words of a statute. The second requires those using the law to take into account a variety of considerations that might limit its use. For example, just because a statute sets out in very clear language that a minister may do something, it is far from clear that the power is always absolute. Indeed, a minister of justice who stops an extradition request for purely personal or partisan reasons would almost immediately find him or herself before the courts.
But in the case of the two Michaels, there is no suggestion the minister would exercise his authority under the Extradition Act except in the pursuit of the national interest. Whether it is in Canada’s national interest for the minister to effectively allow Huawei executive Meng Wanzhou to leave Canada as a kind of quid pro quo is the specific and vital question.
Before addressing that question, let me say upfront that I believe that the detention of these two Canadian citizens is entirely a political act of the Chinese state in retaliation for our pursuit of our obligations under an extradition treaty with the United States. The fact, the reason and the manner of their detention is utterly unjustified, and an excellent example of how Beijing acts when it cannot get its way with other countries. If I were a relative of either men, I would be doing exactly what Vina Nadjibulla, Mr. Kovrig’s wife, has been doing over the past few days: trying to get the government to raise its game.
But on the specifics of the question, I do not believe that it is in Canada’s national interest for the minister of justice to order the release of Ms. Meng. The detention of our two fellow citizens is nothing less than a large and powerful state attempting to bully a middle power, which is without a great deal of cover from its allies. If we surrender to this pressure, we will be sending a message to Beijing that such tactics work, and we thereby endanger other Canadians or Canadian economic interests whenever a significant dispute arises between our two countries. This cannot be in our long-term interest.
Two additional considerations should be taken into account by Ottawa, if it were musing about abandoning Ms. Meng’s extradition.
The first is the likely very negative reaction of the United States. At a minimum, the current U.S. president would be unpredictable in his response, and it is clearly not in the national interest for us to endanger our already challenging relations with the U.S., absent an absolutely overwhelming reason.
The second consideration is the appearance or perception that would follow if the justice minister were to intervene while the extradition is being considered by the B.C. Supreme Court. This would be an especially worrisome outcome given Prime Minister Justin Trudeau and his cabinet ministers have been arguing for months that such interference would constitute a violation of the rule of law. While some might argue that this last issue is one that should only be of interest to Liberals as a partisan issue, how we all feel about the rule of law is well beyond partisan politics.
The government has been right to declare that it would not interfere with the judicial process. It should stick to that position, not because it does not care about the two Michaels, but because it is not in the national interest to do so. It is, however, in the national interest that the government should significantly increase the pressure it can exert on Beijing – even if we must pay an economic cost for doing so.
Let’s bring the two Michaels home and keep our principles intact. The two goals are not mutually exclusive.
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