The Canadian government can legally intervene and withdraw its support for Meng Wanzhou‘s extradition case at any time, despite its claims that it must keep a hands-off approach until the Huawei executive’s extradition hearing has concluded, according to a legal opinion addressed to Canada’s justice minister.
That legal opinion on the government’s authority to set Meng free was sought, among others, by former federal justice minister Allan Rock and the wife of one of two Canadians detained in China in apparent retaliation for Meng’s arrest in Vancouver in 2018.
“It is clear, in my view, that that’s the law — that the (justice) minister may intervene at this stage,” said Brian Greenspan, the Toronto lawyer well-versed in extradition proceedings who wrote the opinion.
Meng is fighting extradition to the United States, where American authorities have charged her and her company with multiple counts related to allegedly skirting U.S. sanctions on Iran and stealing corporate secrets.
In Meng’s case, the extradition hearings are ongoing in British Columbia. Despite calls from China and others for Canada to intervene in the case, Prime Minister Justin Trudeau and Justice Minister David Lametti have repeatedly refused to weigh in during the court process, citing the independence of the judicial system.
In Canada, once the federal justice department has said an extradition case can proceed, an extradition hearing is held and a judge rules on whether Canada should fulfill a country’s extradition request. After that the justice minister then makes the final call on whether the government will surrender the person in question.
In his legal opinion — dated May 22, 2020 and addressed to Lametti — Greenspan said the justice minister can legally intervene in the case before it hits his desk, saying that “discretion” is “expressly codified” in the Extradition Act.
“The legislation couldn’t be clearer,” Greenspan told Global News in an interview, citing the section of the act that says “the minister may at any time withdraw the authority to proceed (with an extradition hearing).”
“That gives an unfettered discretion, without even setting out the particular conditions in which that discretion has to be exercised or might be exercised. It gives the option to abandon an extradition that Canada doesn’t wish to pursue and abandon it at an early stage, so you don’t have to wait until the end of the day. You can do it now.
“All we’re saying is: the right exists, the choice exists, the option exists. And it’s up to the government to choose whether to exercise that option.”
Global News asked Lametti’s office for confirmation that the government is in possession of Greenspan’s legal opinion, for the minister’s reaction to the opinion and why the government isn’t engaging in a discussion about the option to stop the extradition case.
A statement sent by a spokesperson for Lametti’s office confirmed the Department of Justice had received the legal opinion in question but provided few answers.
“Extradition in Canada is conducted in conformity with the Extradition Act, extradition treaties and the Canadian Charter of Rights and Freedoms,” the statement from the minister’s office said.
“Our extradition process ensures that individual rights are protected and that those sought for extradition are afforded due process before the courts, while honouring our international treaty obligations. We are well aware of the laws and processes governing this important regime.
“As this case remains before the courts, and the Minister of Justice has a direct role in the extradition process, it would not be appropriate to comment further.”
In an interview with Global News, Rock speculated the Liberal government might have opted to tread carefully in Meng’s case after taking a major political hit over allegations of political inference in the criminal prosecution case against engineering giant SNC-Lavalin.
“I think last year during that controversy, the government lived through a very difficult experience,” Rock said. “Maybe the reflex now is not to talk at all to the person who has that portfolio.”
But Rock described that as “a real mistake” in Meng’s extradition case, arguing there’s “a major distinction” between that case and what happened with SNC-Lavalin.
“Extradition is not criminal. It’s an administrative procedure,” Rock said. “It has a political aspect to it and the minister of justice controls the process under the Extradition Act. He can turn it on. He can turn it off.
“So it is proper for the minister to stop it if he wants to do that, and it’s proper for the prime minister or other ministers to speak to the minister of justice about that. But that distinction is not being made. They’re simply saying it’s before the courts. so we can’t possibly interfere.”
Experts disagree over whether Canada should intervene
Rock, who served in former prime minister Jean Chretien’s cabinet, argued “there’s a number of reasons” it’s in Canada’s interest to put a stop to Meng’s extradition. He said the case is a “very different proceeding” now than it was at the beginning and Canada knows more now about the Americans’ approach to the case.
On top of that, the COVID-19 pandemic this year has slowed court proceedings and Rock estimated it might be 2024 before the Meng extradition proceeding “comes to its ultimate end.”
In the meantime, he argued, Canadians Michael Spavor and Michael Kovrig remained detained in China where they’re at risk of being infected by the coronavirus and “being subjected to a show trial” — and Canada’s foreign policy remains “paralyzed.”
China has repeatedly denied that Kovrig’s and Spavor’s arrests are in any way linked to Meng’s arrest. The country formally charged Kovrig and Spavor with espionage last week.
In his legal opinion, Greenspan wrote there are “compelling reasons” for the minister to act in Meng’s case at this time and argued that the United States’ case against Meng is “weak and speculative.”
“In our respectful submission, there are compelling reasons for your intervention at this stage of the proceeding in order to preserve, if not enhance Canada’s longstanding commitment both to comity and our adherence to principles of fundamental justice in the international arena,” the document says.
Others, however, argue that setting Meng free to secure the freedom of the two Michaels is not in Canada’s interest.
“An intervention by the Minister of Justice in response to blackmail and coercion by the Chinese regime in arbitrarily detaining and treating two innocent Canadians very brutally is clearly not in the Canadian interest because it would simply embolden the Chinese government to do more of this kind of thing in future,” said Charles Burton, senior fellow at the Macdonald-Laurier Institute.
“The idea that we could just arbitrarily make a determination that Meng Wanzhou should go back to Beijing, making a deal with the Chinese authorities, in effect a hostage exchange … would set an awfully bad precedent that we would really shouldn’t be considering.”
“We can’t simply act in the short term, leading to a situation could be much worse in the longer term.”
Reached for comment on Greenspan’s legal opinion and Lametti’s role in the extradition process, former Conservative justice minister Rob Nicholson said he would always “respect the court process” in an extradition before making the decision, based on advice from the justice department.
— With files from Global News’ Amanda Connolly, Bryan Mullan, Mercedes Stephenson and Reuters