Tuesday, 16 July 2019

Extradition from Canada to the USA: Why Meng's Chances of a Favourable Canadian Verdict are Slim

Extradition by the numbers

This Extradition Fact Sheet from a Government of Canada website provides statistics on Canada-to-the-USA extradition cases over a ten year period from 2008 to 2018.  As you can see, once a  case is before a Canadian judge (as Meng's is now) only 8 times (total number of discharges/refusals in 10 years) of 798 US extradition requests has the court ruled in favour of the individual resisting extradition--roughly 1% of the time.

Fiscal YearTable note *Total number of requestsArrestsATP’s IssuedOrder of Committals Total number of discharges/ refusalsWithdrawalsTotal number of people surrendered
2008-2009978467400161
2009-20101186563301349
2010-20111327158161661
2011-20121179372310281
2012-20131019566343665
2013-2014534943341758
2014-2015475338291552
2015-2016443430290241
2016-2017403532211649
2017-2018494738230235
TOTAL798626507287840552
 A CBC News report on the "High Rate of Canadian Extraditions" described the need for reform.  As Robert Currie, a professor of law at Dalhousie University, described the Canadian system, "Once you are sought for extradition, your goose is pretty much cooked."

Best chance of avoiding extradition before Minister issues Authority to Proceed

In the same table above, when we compare the "number of requests" to "ATPs issued" (Authority to Proceed), we discover that in 65% of cases an Authority to Proceed was granted.  In other words for a person facing extradition, the best chance of avoiding extradition (35%) comes before an ATP has been issued.  Unfortunately for Meng, On March 1, 2019, the Department of Justice issued a press release announcing:

Today, Department of Justice Canada officials issued an Authority to Proceed, formally commencing an extradition process in the case of Ms. Meng Wanzhou. 
The decision follows a thorough and diligent review of the evidence in this case. The Department is satisfied that the requirements set out by the Extradition Act for the issuance of an Authority to Proceed have been met and there is sufficient evidence to be put before an extradition judge for decision.

Who issues Authority to Proceed?  Justice Canada officials or the Minister?

While this press release makes anonymous "Department of Justice Canada officials" responsible for the issue of an Authority to Proceed, elsewhere the Ministry website seems clear that "The Minister of Justice must determine whether to authorize the commencement of extradition proceedings in the Canadian courts by issuing an 'Authority to Proceed'."  In other words, from December 1, 2018 to March 1, 2019, the Minister of Justice, in consultation with the International Assistance Group of the Canadian Department of Justice, had the option not to issue an "Authority to Proceed" and release Meng from house arrest.

Who issues provisional arrest warrant?  A judge or the Minister?

On December 12, 2018, Jody Wilson-Raybould issued a statement saying:  “As the Minister of Justice, I take my extradition responsibilities and obligations very seriously." In that statement Wilson-Raybould claims:
Ms. Meng was arrested pursuant to a provisional arrest warrant issued by a judge of the Supreme Court of British Columbia a procedure which is contemplated in both the Extradition Act and the Treaty on Extradition between Canada and the United States in circumstances where urgency has been established. The decision to seek a provisional arrest warrant from the court is made by Department of Justice officials without any political interference or direction.

However, what the Extradition Act says is:
The Minister may, after receiving a request by an extradition partner for the provisional arrest of a person, authorize the Attorney General to apply for a provisional arrest warrant 
And consequently:
A judge may, on ex parte application of the Attorney General, issue a warrant for the provisional arrest of a person
How could Wilson-Raybould claim that "a provisional arrest warrant was issued by a judge" in accordance with the Extradition Act, when the Act specifies that she as Minister of Justice was responsible for issue of the warrant?  As explained on the Public Prosecution Service of Canada website:
Extradition treaties do not themselves create an obligation or a power to arrest in Canada. They merely define the basis on which provisional arrest may be requested. The judicial power to order provisional arrest arises under section 13 of the Extradition Act, once the Minister of Justice approves the request for provisional arrest (section 12).
How could Wilson-Raybould claim that the decision was made "without political interference or direction" when the Act and the Public Prosecution Service confirm that "the Minister of Justice approves the request"?

In Canada EXTRADITION IS POLITICAL

I must admit I have started yelling that in Canada EXTRADITION IS POLITICAL.  (By the way, kudos to David Akin for sharing my rebuttal to his ANALYSIS on his Twitter feed.  What better way to contradict my claim that journalists were censuring the discussion than to forward a link to my post.  As of today, I can report that the post has been viewed 71 times.)

I have gone looking for an answer to the question:  When the Extradition Act says "the Minister" does the text really mean anonymous "Officials of the Department of Justice"?  I have not found an answer that I can quote here, other than the glossary of definitions at the beginning of the Act which states: "Minister means the Minister of Justice."  What I have found are repeated confirmations that in Canada extradition is political.

Justice Minister David Lametti has already confirmed, in an interview with the Star that
foreign affairs will be a factor if and when it comes time for him to make what he acknowledges is a political decision whether to extradite Huawei executive Meng Wanzhou to the United States over China’s furious objections.
David Akin also confirms that
[ . . .] there will be an opportunity for Prime Minister Justin Trudeau, through his justice minister, David Lametti, to intervene and, if they so choose, to block the extradition.But that opportunity comes much, much later, at the very end of the extradition proceeding.

The Shift from "it's not political" to "it's not political yet"

 The argument has shifted from "it's not political" to "it's not political yet." The problems with the new argument are numerous.  In the first place, someone should tell Minister of External Affairs, Chrystia Freeland, so she can stifle her strident claims that “When it comes to Ms Meng there has been no political interference ... and that is the right way for extradition requests to proceed.”

The second problem with the "let's do nothing now" approach, is that the extradition hearings in BC Supreme Court are not scheduled to start until January 2020.  The case will go on for at least two years, Canadians will languish in a Chinese prison, Canadian businesses and trade will suffer, and Canadian trade and relations with China may never fully recover.  As I commented at the beginning of the year: "if the naivety and Dudly-Do-Rightism of Canadian leadership allow the extradition hearings and detainment of Meng to continue for years, then the corporate objective of slowing down the competition will have been achieved--and the Government of Canada will have colluded in that corrupt undertaking."

The third problem with "let's wait" is that there is no legal, moral or practical reason to wait.  The Extradition Act states: "The Minister may at any time withdraw the authority to proceed and, if the Minister does so, the court shall discharge the person and set aside any order made respecting their judicial interim release or detention."  "At any time" includes right now.  If the Minister considers "all the relevant circumstances," as indicated in the law, the grounds for withdrawing the Authority to Proceed are numerous:  the original warrant is suspect, the request political, contrary to the Canadian Bill of Rights regarding nationality and ethnicity, no individual has been convicted of a crime in the USA for the behaviour of which Meng is accused (business in Iran), such behaviour is definitely not a crime in Canada, and, for obvious, practical reasons she will never be imprisoned in the USA as required by the Act and the Treaty on Extradition Between the Government of Canada and the Government of the United States of America.

The fourth problem with the passive, "wait and see," "let the judge decide" attitudes of our political leadership is they grossly overestimate the power of judges in extradition cases.  As the Supreme Court of Canada Judgement outlines in McVey versus the USA, "the role of the extradition judge is limited, but important:  he or she must determine whether a prima facie case exists that the conduct of the fugitive constitutes an "extradition crime" according to Canadian law."  In this "Judgement" the Justices make the point 15 separate times that the extradition judge has "limited" functions and "modest" powers.

The Solution is political, but Canadian politicians play Poncius Pilat

The point here is that unlike the Minister of Justice who is tasked with considering "all the circumstances," the extradition judge is only tasked with considering whether or not what Meng has done looks, at first glance, like bank fraud--the extraditable offence of which she is accused.  However, the Supreme Court Justices have indicated that the extradition judge cannot investigate or consider American law.  Can she,  for example, consider the fact that no individual has ever been convicted of a crime in the USA for transgressing the Iran sanctions?  It appears not.  This responsibility falls to the Minister of Justice.  The historical statistics indicate that Meng has a 99% chance of being extradited.  This is so because of the limitations of an extradition hearing and limited powers of an extradition judge, and the reluctance of the Minister of Justice to act at the end of extradition hearings.

Supreme Court of Canada confirms Minister, not a judge, has the power 

The Supreme Court Justices make the point repeatedly that the extradition judge's powers are limited, but the Minister of Justice's powers are broad:
When a request is made, the political authorities in the requested state will examine the material to see that the request complies with these terms and conditions.  The treaties also make provision for the requesting state to supply certain material whereby the requested state can determine the validity of the request and its compliance with the terms and conditions of the treaty (see Art. 9 of the treaty here (Can. T.S. 1976 No. 3)), and it is reasonable that these are the materials to be looked at in determining the issue.  In essence, the treaty obligations are of a political character to be dealt with in the absence of statute by the political authorities.
          [ . . . .]
Nowhere is the duty to consider the foreign law assigned to the extradition judge.  This, as I mentioned, is a task for the political authorities at common law, now assigned by statute to the Minister of Justice.
          [ . . . .]
In Canada, the procedure, we saw, is more fluid, the case frequently coming before the extradition judge before the formal requisition has been made.  But the substance is the same; the Minister of Justice may at any time refuse to surrender and discharge the fugitive (s. 22 of the Act).
           [ . . . .]
the Extradition Act, which we saw only requires that there be prima facie evidence of an act that constitutes a crime listed in the treaty according to the law of Canada.  In fact, the Act does not deal with proof of foreign law at all.  That, as I said, is a matter for the executive.  (The executive, in Canada, means political representatives of the Queen, in particular the Prime Minister. See https://www.lawnow.org/democratic-governance-the-constitution-and-canadas-branches-of-government/).
           [ . . . .]
[ . . .] what is really important is that a person should not be surrendered to another country for conduct that is not considered a serious crime in the requested country.  
Canada and Canadians are facing a serious situation which requires political action.  We have to stop letting our politicians off the hook with delaying, 'it's not political" arguments and require them to perform the duties for which they were elected.


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