Meng Extradition: What to Watch For

Today is reportedly the deadline for the Minister of Justice to issue an “authority to proceed” in the extradition committal hearing in the Meng (Huawei) case. Because there has been much attention lately to the functions of Minister of Justice (MoJ) and AG and much confusion, I have sat down and compiled some observations on extradition proceedings. (This was initially prepared as a tweet string, last night, but I messed that up. I'd add that I have become a student of extradition law these last few months and do not claim a deep-seated expertise. But still, it might be helpful in this blog to codify what I have learned, and what has occurred to me as I have).

The authority to proceed is a fairly basic, box-checking exercise by the International Assistance Group at Justice Canada. The ultimate MoJ’s authority to proceed then authorizes the AG to act on behalf of the United States in seeking a court order, committing Ms Meng to extradition.

The MoJ and the AG are, in our system, the same person, presently Mr Lametti. Often the AG is, in practice, the Director of Public Prosecutions (DPP). Under the Director of Public Prosecutions Act, the DPP acts on behalf of AG in criminal proceedings, and under s.3(9), may perform the AG function under the Extradition Act. However, my (latest) understanding is that Justice Canada litigation division lawyers typically conduct the committal hearing, as agents of the AG. (Exactly who would issue instructions in such an arrangement is unclear to me, compounding questions about structural lack of independence, raised below.)

Because this is an extradition proceeding, it runs very differently than a criminal matter. It is, in essence, “administrative law”, not criminal law. It is, yes, “rule of law”, but “rule” of a very different law than exists for criminal trial proceedings. Extradition proceedings are much easier for the government to "win" than are criminal trials.

The rules of evidence are limited (aka weak). The court committal proceeding is comparatively perfunctory. It basically boils down to ensuring the alleged crime at issue would be capable of being committed for criminal trial in Canada. Again, this assessment is based on very limited evidence.

There are clever arguments that no doubt will be made by Ms Meng’s counsel at the committal hearing. This is a well-financed legal team. But the odds are stacked against them: almost always, the court will order committal. The extradition law is, after all, designed to facilitate extradition to a treaty partner. 

Once a court orders the subject of the extradition committed, it goes back to Mr Lametti – in his role as MoJ. This is the surrender phase. In deciding whether to surrender a person, there is a list of considerations—often open-ended—for the MoJ to consider.

Note, for example, s.47(e): "The Minister may refuse to make a surrender order if the Minister is satisfied that ... none of the conduct on which the extradition partner bases its request occurred in the territory over which the extradition partner has jurisdiction." That could well be an issue, although I imagine the US argument will be that the dollar-based nature of the alleged fraudulent transactions touched US territory.

It is important to appreciate that Mr Lametti wears an MoJ hat at the surrender stage. Here, the MoJ has considerable discretion. And in doing so, it is fully anticipated she or he may contemplate political considerations, in the policy (not partisan) sense of the term. Chief among these: foreign relations. 

This “political” aspect of the extradition process is readily acknowledged by the Supreme Court – and indeed, has meant that the Court has been very reluctant to disturb the ministerial decision on judicial review. See this passage from Badesha:

The Minister’s decision to order the surrender of a person falls “at the extreme legislative end of the continuum of administrative decision-making” and is seen as “largely political in nature”: Lake, at para. 22, quoting Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at p. 659; Sriskandarajah, at para. 11. Given the Minister’s superior expertise in Canada’s international relations and foreign affairs, he or she is in the best position to determine whether the factors weigh in favour of or against extradition: Lake, at para. 41. The Minister’s decision to order surrender is therefore subject to review on a standard of reasonableness.

In his MoJ extradition role, Mr Lametti will have no true “AG independence”, a concept much in the ether lately. But there are various administrative law principles that could be violated if the MoJ were to exercise his or her discretion unreasonably – for example, with an eye to matters extraneous to the purposes of the Extradition Act. (Winning an election!)

Or the MoJ might run into trouble on procedural fairness grounds were he or she to convene in Cabinet and hash out a decision under instruction from others – this could well give rise to the sorts of administrative law “bias” claims found in cases like Tremblay.

I would also suggest that Mr Lametti needs to stay well away from anything other than a perfunctory personal role in the extradition process, until the surrender decision arrives on his desk. If he does not – and gets up to his elbows early – that would spark another bias claim at the surrender stage, alleging personal “prejudgment”.

Indeed, I wonder about an Act in which the MoJ performs so many overlapping functions at different stages -- there is a caselaw concerning "structural lack of independence" that might reasonably apply where Charter rights and Bill of Rights interests are at issue (as they certainly are in extradition). (The Federal Court recently invalidated portions of the Citizenship Act under the Bill of Rights where the ministerial investigative and adjudicative function was not kept separate. See Hassouna at para. 100 et seq.) It will be interesting, therefore, to see if Ms Meng's lawyers challenge the constitutionality of the multi-hatted MoJ role (which so far has stood up).

In sum, extradition is still a “rule of law” undertaking – just not one in which courts tend to have the final say. While the courts may review, “the courts will decide” is not a helpful way to summarize extradition law. The ultimate merits of the matter will be decided by a minister -- not a judge or jury.

That said, there are still many legal niceties that should protect the integrity of the process. Again, to say this is a political decision means that the decision is exercised with a policy-oriented, not judicial, judgment. It is not to say that in extradition, one may engage in backroom political machinations or partisan haggling.