Tuesday, October 27, 2009

Courtroom Notebook: Defence highlights faulty evidence in the case against Dr. Hassan Diab

By Don Pratt

On October 22, 2009, Mr. Don Bayne, Hassan Diab’s lawyer, submitted nine reports to the court to challenge two key points of evidence in the French case against Hassan Diab. The reports produced by top experts in Canada, the United States, France, and England, show the inherent unreliability of the evidence against Hassan. Some of the reports address handwriting analysis submitted by France, others deal with the problems of using unsourced and untested intelligence as courtroom evidence.

The French case against Hassan alleges that five words on a Paris hotel registration card (presumably written by the bomber) match Hassan Diab’s handwriting. The defence consulted with internationally renowned handwriting experts who concur that the foundation for the handwriting analysis and the conclusions drawn from it are fundamentally flawed. Specimens used in the handwriting analysis and claimed to belong to Hassan actually belong to someone else.
In the words of the leading British expert, the French handwriting analysis is “appalling” and the worst he has seen in 30 years. The errors committed by France’s analysts in dealing with a crucial piece of evidence raises serious questions about the soundness of the case against Hassan, and provides a “false foundation” for linking Hassan to the Rue Copernic attack.

The French case against Hassan also relies on extensive help from intelligence services and is saturated with secret intelligence information from unknown sources, the reliability of which cannot be tested in court. Mr. Bayne argued that such information, which is not admissible in a Canadian court, should not serve as a basis for extradition. Expert reports submitted by Mr. Bayne draw attention to the many dangers inherent in using intelligence as evidence. He reminded the court of recent Canadian experience with cases driven by faulty intelligence such as that of Maher Arar.

The nine reports Mr. Bayne submitted as exhibits will be the subject of a voir dire hearing at the end of November or early December. A voir dire hearing is used to determine the admissibility of evidence. The judge must determine the admissibility of the new evidence submitted by the defence. That hearing was to begin on October 22, but the Crown Attorney requested an adjournment to review the reports submitted by the defence.