He’s done it again. After retracting his original comments on Meng Wanzhou, John McCallum has weighed in a second time. Has he lost it? Maybe not. Maybe he is simply blurting out – however inarticulately – what the government can’t say out loud, namely, that in our rush to uphold the rule of law, Canadians may be painting themselves into a corner.
The rule of law forbids political leaders from interfering in a judicial process. Thus, if a court decides that someone is guilty in a criminal trial, the minister should respect that. He/she can intervene and grant clemency, but this should be an exceptional event and requires exceptional circumstances.
However, as both John Geddes and Tonda MacCharles have pointed out, extradition is more complicated. The minister is expected to engage in the approval stage and can bring a wider range of concerns into the assessment, such as whether extraditing someone would “shock the conscience of Canadians” or “be unjust or oppressive.” Or, the minister might focus on special aspects of our international commitments or other relations with foreign states.
The point is that, in the end, the minister’s decision can involve “political” considerations of a sort the courts usually avoid. The law builds this into the process, presumably because law-makers believed considerations like these are often crucial.
This, in turn, means the court might decide that the request for Meng’s extradition meets the standards in the law, yet the minister could still refuse to extradite her. So far, the discussion around the case has made it difficult to see how this could happen without violating the rule of law.
The reason is that much of the commentary and debate has taken the rule of law to mean the minister’s role is essentially a rubber stamp, when it isn’t.
So, why hasn’t the government taken steps to correct this? I can think of a few reasons.
First, this is a highly sensitive situation. Three Canadians are being held hostage, and at least one is facing execution. The government mustn’t respond to such tactics; it should take a strong and clear stand on the rule of law. Debating the minister’s discretion on extradition now would only muddy the waters. The Chinese government would treat it as an admission that the government really does control the process.
Second, while the court is reviewing the case, the rule of law requires that the government refrain from commenting on it, especially in ways that could be construed as interference.
Third, the government appears to have been hopeful that the Americans could reach a negotiated solution with the Chinese and would then drop their extradition request. The Canadian government hoped this would also include release of the Canadian hostages. Perhaps some such process is underway behind the scenes, as Andrew Coyne suggests.
Taken together, these points make it very difficult for the government to speak openly about the extradition process in a way that would clarify the rule of law. On the other hand, allowing the public misunderstanding to fester will make it very difficult for the minister to disagree with the court, should it come to that – and it may.
This is an extraordinary case; a range of human, political, and economic issues have become deeply entangled and the stakes are very high. If the court approves the US request, the minister may still conclude he should refuse or delay Meng’s extradition.
That will not be an issue for the court, but it might be for Canadians. If opinion leaders or opposition politicians accuse the government of caving to pressure, or abandoning the rule of law, it will make things very difficult.
This may explain McCallum’s baffling actions and why he went off script – twice. Maybe he was trying to say something important and even useful about the situation.
Perhaps the government has well-founded doubts about extraditing Meng and McCallum recognizes that the current debate around the process will be a problem. Maybe he was trying to pave the way by shifting public expectations.
This doesn’t mean that McCallum is part of some PMO subterfuge, whereby the government is publicly claiming to respect the rule of law, while secretly trying to subvert it.
The government is in a quandary. It is bound by the rule of law, but a lot of people see this mess as the Americans’ fault, and they don’t think Canada should be caught in the middle. They may have a point.
For the moment, however, the first concern should be the Canadian hostages. Canada mustn’t cave into bullying tactics by the Chinese – it must defend the rule of law – but to make the best choices, it needs all the room it can get.
The public and the opposition can do their part by ensuring the debate is informed. Right now, that means taking a subtler view of the rule of law.