Amidst all the legal hullaballoo of the Hassan Diab case, something critical keeps fading out of view. Simply put: Hassan is innocent, as proven by French investigators’ own case documents and palm print and finger print mismatches -- and they know this but don’t want to accept it.So, why do French investigators pursue Hassan when they know he is innocent? We can speculate about possible political ambition, tunnel vision, fear of embarrassment, and the desire to score “hero points”.
However, what really matters is what happens to the innocent man caught up in this runaway legal process.
The judge can decide to (1) extradite Hassan, (2) refuse to extradite Hassan, or (3) stay the entire proceedings.
Option 1 involves sending an innocent man to an unfair trial in France, under an inquisitorial (or shall we say “inquisitional”?) system whereby he cannot bring his own witnesses and cannot challenge the sources of secret intelligence.
Option 2 amounts to a decision that there is not enough evidence for extradition. While this is true, this is a decision that doesn’t begin to address the real horrors in this case under this body of extradition law and a legal process that has seen suppression of exonerating evidence and falsehoods entered into the Record of the Case as “presumptively reliable”. This option would fail to provide redress for the abusive prosecution of a man known to be innocent, costing him his freedom, livelihood, and years of his life. This option would not prevent French investigators from restarting the entire extradition process.
Option 3 would be to stay (halt) the entire case, ending the matter once and for all, and recognizing the wrongdoing French investigators have committed against Hassan and against the Canadian court. Real and authentic justice would require the judge to acknowledge that France has abused the Canadian legal process.
In sum, the options are:
- Option 1: Committal for extradition leading to almost certain conviction in a kangaroo court followed by life in prison
- Option 2: Abstaining from a definitive decision either way
- Option 3: Authentic justice
French investigators insist that the judge accept the Record of the Case as originally put forth in 2008, and ignore all the significant evidence that has come to light since then. The French stance amounts to saying, “In the extradition treaty, you promised to accept whatever we say as reliable; so we insist that you do so, in spite of all the evidence to the contrary. You’re bound by treaty to accept our theory, as improbable as it may be in view of the facts. While you may have caught us lying about some things, you have to believe us anyway. After all, you promised!”
Hassan’s lawyer presented nine abuses of process (selected from a larger number) perpetrated by French investigators in this case. These are deliberate misrepresentations and omissions that were used together with secret intelligence and bogus handwriting analysis to fabricate the case against Hassan.
In an adversarial legal system, the prosecutor is supposed to marshal all the evidence against the accused and leverage this evidence for all it’s worth to get a conviction. But in an adversarial system, the accused also has the defence to marshal exonerating evidence, and to counterbalance the prosecutor. Each side must address the points made by the other side, so everyone has the same opportunity for influence on the outcome of the case.
Extradition law has none of this balance. The accused is severely disadvantaged, while the prosecutor representing the requesting state needs to prove almost nothing in order to achieve extradition.
That’s why it’s so crucial to have an honest Record of the Case for an extradition hearing. The Record of the Case must be scrupulously fair, candid and representative of all the evidence in the case. This is the only way to ensure a modicum of balance and fairness when someone may be deprived of his liberty.
In this extradition process, French investigators want to have their cake and eat it too. They want to enjoy the presumptive reliability accorded by treaty while suppressing exonerating evidence, cherry-picking evidence, contradicting themselves, and stretching and spinning the evidence in very misleading ways. They also want Candians extradited to their country, while they would never extradite their own citizens. If they are allowed to get away with this, then Hassan Diab’s case will be a complete railroad job. And it will mean any Canadian is a sitting duck whenever any of Canada’s extradition partners is looking for a scapegoat with whom to close a case.
A decision to stay the extradition proceedings would be the only truly just option in this case, and it would have to be based on the nine abuses identified by the defence.
As to the insistence of French investigators on continued trust, I say:
Fool me once, shame on you.
Fool me twice, shame on me.
Fool me 9 times? OUTRIGHT ABUSE.
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