Time for a prisoner exchange
The government’s insistence that intervention would be wrong rings false as time drags on
Michael Kovrig and Michael Spavor — the two Canadians seized by China eighteen months ago in clear retaliation for the RCMP’s extradition arrest of Meng Wanzhou — have now been charged by the Chinese with espionage. The maximum sentence is life imprisonment, the minimum is 10 years, with a judicial history of 99 per cent convictions.
Prime Minister Trudeau, now echoed by Foreign Affairs Minister Champagne, continues to claim that the Extradition Act precludes the government from interfering with the Meng judicial hearing now underway. This is fundamentally incorrect.
Some, including Eddie Goldenberg, Prime Minister Chretien’s former chief of staff, as well as myself, have contended that there is a strong case for prisoner exchange deliberations. But the prime minister continues to assert that this would violate Canada’s “judicial independence” and “rule of law.”
That position conflicts with an extensive review of the Extradition Act’s procedures, defining the respective roles of the Minister of Justice and the court. The review, assigned and accepted by the Liberal government a year ago, was authored by Murray Segal, former Deputy
Attorney General of Ontario.
In his extensive, detailed review, Segal states that in accordance with the Act’s specific provisions, “the Minister of Justice determines whether extradition proceedings should be started and how they will end, making extradition a largely executive function that is political in nature …” and that “in the middle there is a judicial phase where a judge determines whether there is sufficient evidence to justify committal.”
Segal concludes that the only enforceable order the Court may make is that the accused is entitled to have the extradition charge dismissed. Otherwise, if the Court finds in favour of extradition, the matter reverts to the Minister of Justice for final determination.
In its recent decision rejecting Meng’s “double indemnity” argument — that the alleged US offence is not an offence in Canada — the B.C. Associate Chief Justice recognized this clear statutory distinction.
In para 86 of her decision, she states that pursuant to s. 44(1) (a) of the Act “... in the final phase of the extradition process the Minister of Justice is expressly required to refuse a surrender order for extradition if such an order would be unjust or oppressive.”
As well, there are two additional statutory provisions giving the Minister control overriding any Court decision: s. 23 (3), permitting the Minister to withdraw the Court’s authority at any time, and s. 46(1)(c), requiring the Minister to reject the court’s extradition grant if the extradition request is based on conduct of a “political character.”
Given the U.S. contention that Huawei’s loan was contrary to the U.S. imposition of trade sanctions on Iran, as well as its unilateral withdrawal of the Iran Nuclear Deal, it is tough to imagine a more obvious example of Meng’s reactive conduct of a global “political character” — a critical, arguably decisive factor not referred to by Trudeau in his repeated justification for reliance on judicial determination.
It’s clear that these several provisions of the Extradition Act place the ultimate determination for extradition squarely with the Minister of Justice, not with the Court.
What about the government’s unexpressed but no doubt real concern of avoiding Trumpian punitive responses? As I’ve said before, there is comedic irony for the Trump administration to be requesting extradition based on fraudulent lying. However, there is Trump’s earlier indication that extradition would not be required if a U.S./ China trade agreement is concluded, an objective which, at least in part, has been reached.
Based on the above — especially the 560-plus days of solitary, oppressive confinement of the two Canadians — is it not time for the federal government to face up to reality, and recognize that apart from the arguments still available to Meng’s counsel concerning the flawed process followed in her arrest, the time for settlement is running out?
There is no way Kovrig and Spavor will be released while Meng is under arrest. Trudeau claims that Canada has the support of many Western nations, but apart from the U.S. — the initiator of the extradition proceedings — have any spoken out? And if they have, they clearly have had no effect.
Further, as China now predictably contends, Canada’s position that “judicial independence” must prevail applies to their charges against the two Canadians as well. The fact that we have little if any respect for the Chinese judicial system, from a settlement perspective, is totally irrelevant.
Surely the time has come, if not long past, for prisoner exchange negotiations. As indicated, the Minister of Justice is specifically authorized by the Exradition Act to intervene in the Court proceedings without any violation of judicial process or the rule of law.
And why not add the two other Canadians already convicted for alleged offences, and seek their deportation back to Canada as well? Otherwise, there is little hope for any of them.