About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Latest Book: Available from Irwin Law in April 2018.

Friday
Mar012019

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.

 

Friday
Jan042019

Transition Time 2019

Two thousand and nineteen will, of course, produce a new Parliament -- Canada's 43rd. It will, therefore, be the season of transition preparation in the public service -- and a good time for taking stock (and for filing access to information requests for all those informative ministerial briefing books).

It will also bring a bumper crop of Canadian national security scholarship. Stephanie Carvin, Thomas Juneau and I look forward to the publication of our book on the Canadian security & intelligence community. Stephanie and Thomas have other joint and separate projects that will produce excellent new resources on Canadian national security practices. And with Leah West, I look forward to publishing the long-delayed second edition of the book that justified this blog site: National Security Law (Irwin Law). (The timing of that book depends on the fate of bill C-59.)

With that task accomplished, it will be time to consider the future of Canadian national security blogging. The Canadian academic national security space now has grown -- albeit modestly -- since this blog began in 2007. And other platforms -- such as Twitter -- and forums -- such as our Podcast Called INTREPID -- now consume time and attention. Postings on this site have become more infrequent.

On the other hand, I have considerable evidence from structured conversations that blogging remains the single best means of "knowledge mobilization" in the public policy and law space. Contrary to the views of others, I do not think blogging is dead.

But it should change. The "my musings and commentary" style of blog has probably seen its day, replaced by Twitter. There is still room, however, for the research and analysis blog. In the United States, Lawfare and Just Security point the way. They share these qualities: (1) collaborative, with postings by academics and practitioners; (2) timely, responding to current events and helping shape "hot takes" in a direction helpful to the reality-based community; (3) robust but not inaccessible, written for generalist audience but helpful to a specialist cadre; (4) curated, if not truly peer-reviewed, ensuring quality-control. Unlike this blog platform (a product of Me Myself & I LLP) they are also resourced (which helps reduce the frequency of typos).

I *think* four things now make it possible to replicate this model in Canada. First, the scholarly community willing and able to engage in public-facing discussions may now have enough members to make such a platform sustainable. Second, sensible academic units now acknowledge the significance of a public-facing presence. Not so long ago, writing for a policy or general audience was (in some places) prejudicial to academic advancement. That conceit now seems more muted. Third, the government and the security & intelligence services are much more attuned to public discussions than they were in the near past. The illusion that we benefit from siloed cloisters may now be evaporating. That shift could turn on a dime, especially if 2019 marks a reversion to a more closed government. But I am inclined to think practitioners (present and past) might engage on and with a platform with the four above-noted qualities. Four, other collaborative academic blogs exist, but they are often stovepiped by institutional affiliations and are broad, rather than deep, in subject matter focus. Our experience with A Podcast Called INTREPID is that there is an audience for detailed national security obscurity and geekery.

That leaves the issue of resources. I am not interested in being an editor -- nor, given my inability to proof-read, am I qualified to be one. Everything then depends on helping hands.

I have begun approaching bodies who might be interested in providing an editorial foundation for a collaborative Canadian national security law and policy blog -- which I hereby entitle "A Blog Called INTREPID". The editorial approach would be modeled on that of student-edited law reviews. And the idea would be to twin a dynamic Lawfare/Just Security-style content, with our existing podcast. The platform would also consolidate various collateral products, such as my Secret Law Gazette and the various instructional videos that Leah West and I anticipate producing as the online feature for our National Security Law book. I also need a home for the database of state self-defence justifications prepared by my research assistant Peter Knowlton as a project related to my Destroying the Caroline book. And I know other scholars may be on the hunt for a similar depository.

Put in other words: by 2020, this space may have its own transition. Stay tuned.

 

Thursday
Oct252018

Bill C-59 Flowcharts: Revised and Expanded

Once more unto the breach...

Bill C-59 will hopefully, finally, soon (?) inch its way to the senate committee, after second reading (still underway) in the senate. I confess, I am looking at the parliamentary calendar and starting to feel a bit nervous. As readers of this blog or listerners to "A Podcast Called INTREPID" will know, I do not embrace every aspect of C-59. But I think it a vital bill -- and a vast improvement on the status quo -- measured on both accountability and security grounds.  And in its absence, that status quo will oblige a number of public interest groups to reignite their various court challenges. (If I were the government, I'd be worried about at least some of those challenges.) And watchdog entities like SIRC will have to continue issuing reports saying CSIS is in non-compliance with its current laws (in relation to datasets) and the CSE commissioner will be obliged to continue its decade-long complaints about statutory ambiguities. None of this is sustainable. And meanwhile, our security services would have all the powers and competencies necessary for the analog era. So this is an important law project.

But it is also important for people to understand what is in this complicated bill. I have reached my 20th year as a lawyer, and I continue to believe the most important thing I ever learned in law school is how to reduce a complicated area of law to a decision-tree flow chart. Unless you can make those boxes in the flow chart connect, you are missing something, or the law is missing something. So I continue to make such charts and devices, usually for my personal understanding.

In the event, however, that my labours are useful to others, I post my revised and expanded bill C-59 flowcharts. These now do two things: 1. They outline how CSE's new mandate powers will operate, and the checks and balances on those. 2. They show how CSIS's security intelligence, threat reduction, foreign intelligence and "dataset" (bulk data collection and retention) regimes will work (and the checks and balances on those), if C-59 becomes law.

I have done my best *not* to make mistakes, and have shared these charts with knowledgeable people who have made helpful comments. But caveat emptor -- there will be glitches. Also, there are areas where provisions may be interpreted differently. I have tried to flag those areas where I know others have a different take -- that provides evidence either that I am idiosyncratic or that the provision in question is ambiguous. And then I have also flagged areas where I have concerns that I know I am not alone in having. (Those are in the red boxes.)  Here, I feel danger lies, as these uncertainties could be tomorrow's controversies.

If anyone spies any errors, please let me know.

Revised C-59 Flow Charts:

1. CSE Manadates (as of Senate first reading)

2. CSIS Powers (as of Senate first reading)