Canada-China Relations Committee on Feb. 4th, 2020

[Janet Henchey]

But we can tell you that there was an authority to proceed issued, because that's public record.

The authority to proceed identifies an offence that we believe was made out on the evidence provided by the foreign state. The authority to proceed in the Meng case identifies the offence of fraud.

[Stéphane Bergeron, Bloc, Montarville, QC]

Okay. If I understand correctly, it is decided which of the charges provided by the country submitting the request could potentially apply under Canadian criminal law. I see that is a yes. So if some charges do not apply, but others do, a decision is made to extradite despite everything.

[Janet Henchey]

Yes. We only have to be satisfied there is a Canadian offence that could be made out on the facts. We don't have to match all of our offences with the foreign offence. We look at the conduct and we ask, “Is there a Canadian offence that arises from that conduct?” If so, we identify it and put it in the authority to proceed.

[Stéphane Bergeron, Bloc, Montarville, QC]

Mr. Chair, if I have enough time, I want to come back to the issue of the proposal to exchange prisoners.

I would like to remind our friend and colleague Mr. Fragiskatos that, when he talked about the opposition, I would have preferred if he had specified that it was the official opposition. Obviously, neither my colleague from the NDP nor I are associated with the comments that have been made so far. However, the fact still remains that this is a relevant issue insofar as, first of all, that idea seems to me totally unacceptable for at least three reasons.

First, they want to make a two-for-one exchange. That on its own seems totally unacceptable to me.

Second, since the beginning, Canada has consistently claimed that this process has to do with the rule of law. Since we are now in the second stage, which is the judicial stage, how could we bypass the judicial process in a so-called rule of law to reach a political agreement between the two countries? That is my second concern.

Third, it should be recognized that, on the surface, such an agreement between China and Canada would practically be an invitation to all authoritarian regimes of the world to imprison Canadians and then potentially have a prisoner exchange.

I know that this idea may have been stealthily considered by the government, although it has been categorically rejected since. I recognize this. Clearly, this idea seems totally unreasonable to me.

Does my analysis make sense to you?

[The Chair, Liberal, Geoff Regan]

Your time is up, Mr. Bergeron.

[Janet Henchey]

I can't really comment on that, but as I indicated earlier, the Extradition Act does not contemplate prisoner exchange.

[The Chair, Liberal, Geoff Regan]

Thank you very much, Mr. Bergeron.

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair. I have a series of technical questions.

You talked about three different phases, but as I see it, there are five processes going on: the decision whether to arrest somebody provisionally; the decision whether to issue an authority to proceed; the extradition hearing itself, which decides whether or not there's sufficient evidence to stand trial if it were an offence in Canada, which I call the preliminary inquiry standard; the decision by the Minister of Justice whether to surrender the individual; and an overriding process, which I call number five, which is the act that allows the minister to withdraw the authority to proceed “at any time” and stipulates that “if the Minister does so, the court shall discharge the person and set aside any order made”, under either “judicial interim release or detention”.

Of these five processes, I take it that number one, the decision on whether to issue a warrant for arrest, is under the advice of the IAG, the internal group, not the minister. There's no political involvement even possible.

On the second one, the decision to issue an authority to proceed, you're saying that it's delegated by the Minister of Justice to departmental authorities. Is it true that the minister would have no opportunity to intervene or say anything about that? I understand that the officials carry out this assessment and make a determination, but is there no role for the minister even possible?

[Janet Henchey]

If I can go back to your first comment about the arrest, that is a decision made by the court. We bring an application to the court for a warrant.

[Jack Harris, NDP, St. John's East, NL]

Fair enough, yes, but the decision to ask for the warrant is made internally, is it not?

[Janet Henchey]

That's right.

[Jack Harris, NDP, St. John's East, NL]

The minister doesn't decide whom to arrest, whom not to arrest or whom a warrant should be sought for.

[Janet Henchey]

That's right, but the arrest can happen in one of two ways.

[Jack Harris, NDP, St. John's East, NL]

I understand. Let's say we have someone arrested. Between the arrest and whether or not something proceeds, there's this question of the authority to proceed.

[Janet Henchey]

That's what I'm trying to explain. The authority to proceed sometimes precedes the arrest.

[Jack Harris, NDP, St. John's East, NL]

I understand that too, but that hasn't happened. If you have the provisional arrest, which we did in the particular case of Ms. Meng.... There was a decision, after she was arrested, as to whether to seek an authority to proceed or whether the authority to proceed would be issued.

There was a period of time, I think some 10 or 12 days or maybe more, during which we did hear from President Trump about some comments that he made. Between the time of the arrest and the time of issuance of the authority to proceed there was a period of time during which the authority to proceed was issued. You're saying that authority is delegated, but is that delegated in the sense that the minister cannot have any say in it whatsoever?

[Janet Henchey]

As a matter of practice, everything has been delegated in the Extradition Act. All the minister's discretion has been delegated to officials, with the exception of the decision to order surrender. That is done to insulate the minister for that very important decision he has to make at the end of the process and to ensure that he doesn't prejudge the outcome of that important decision.

For that reason, the minister is not involved in the issuance of the authority to proceed and has never been involved in the issuance of authority to proceed.

[Jack Harris, NDP, St. John's East, NL]

Is that a consistent practice?

[Janet Henchey]

It's a consistent practice.

[Jack Harris, NDP, St. John's East, NL]

That's important to know. I think we need to establish that.

The first involvement of the Minister of Justice.... We're talking about the Minister of Justice here and not the Attorney General. They are two different hats, but the same person. We're talking about the Minister of Justice role. After the extradition hearing—which takes place if a decision is made that there's sufficient evidence to convict with a properly instructed court, etc. within Canada—the Minister of Justice has the decision to make as to whether to surrender the individual. That's a ministerial decision. Then what I call the overriding involvement or potential involvement is the act allowing the minister to withdraw the whole case.

Both of these decisions are, in the end, made by the Minister of Justice. Am I correct?

[Janet Henchey]

No. You're correct about how you characterize the minister's decision. After the committal, if there's a committal at the extradition hearing, it goes to the minister. The minister then makes the decision about whether to order surrender, and it's the surrender order that will allow the person to be transferred to the foreign country making the request.

The withdrawal of the ATP is relevant only before the decision of the extradition judge. Once the extradition judge has ordered surrender, the ATP is used. It has been decided upon.

The withdrawal of the ATP is also delegated to officials, and that power exists in case something changes between the time the authority to proceed is issued and the time the extradition judge makes a decision on whether to order committal.

For example, if the extradition partner withdrew their request after the proceedings had commenced, we could withdraw the authority to proceed and recognize that there was no longer a basis...or if something happened to the evidence that we had reviewed in order to issue the authority to proceed, and we no longer had confidence that there was sufficient evidence to justify a committal, we could withdraw the authority to proceed. That action is taken by officials in my department, in the international assistance group; it's not taken by the minister.

[Jack Harris, NDP, St. John's East, NL]

Can I ask an important question?

[The Chair, Liberal, Geoff Regan]

Mr. Harris, I'm sorry, but your time is up. I hope we will get back to you.

[Jack Harris, NDP, St. John's East, NL]

It's the most crucial question.

[The Chair, Liberal, Geoff Regan]

Absolutely, and in fact I'm almost tempted—I wouldn't dare—to comment favourably on having another lawyer on the committee, but I'd better not do that.