Friday, February 18, 2011

My Kafkaesque Justice

By Rania Tfaily

The following is a presentation by Dr. Rania Tfaily, Hassan Diab's partner, which she delivered at an event, entitled “Kafkaesque Justice: The Case of Hassan Diab”, organized by the Communications, Energy, and Paperworkers (CEP) Union of Canada, Local 2025, on February 7, 2011.

In her presentation, Rania describes the Kafkaesque atmosphere that Hassan has been subjected to, since he was falsely accused by French authorities of involvement in a bombing in Paris in 1980.

Special thanks to CEP Local 2025 for organizing the event.

     I would like to share a story with you...

     Imagine that one day out of the blue you are approached by a journalist who informs you that you are under investigation for a crime that took place about 30 years ago, and that a foreign country will be seeking your extradition from Canada. Despite your insistence that you are innocent and you are willing to answer any questions within Canada’s legal framework, you see your name and reputation tarnished overnight. Life becomes difficult with media camping out outside your work place and some threatening to follow you everywhere, including your residence. Your life is turned upside down even though you are not yet charged with any wrongdoing. You know that life will be even more difficult if a legal proceeding is started against you, but you persist in continuing your life as usual because you know that you are innocent and you believe that Canada is a country of law. Despite post 9/11 political atmosphere, you still assume that the rights of individuals against unfounded allegations and suspicions are protected.

     But you soon realize that something very bizarre is going on. You are being followed in an aggressive and intimidating way by people in cars with tinted windows. Unidentified people appear out of nowhere and start taking photos of you in an aggressive manner. Someone attempts to break into your home. You report all of this (along with license plate numbers) to the Ottawa Police because you naively think that the police are there to help you. But your requests for help are ignored. In a country of law, you are intimidated and harassed and you have no one to turn to.

     After more than a year of this intimidation and harrassment, you are arrested. You spend the first month in solitary confinement locked up in a tiny cell all day long except for 15 minutes. You have no access to any reading materials and any books sent to you are confiscated. You get to taste what life is like inside a Canadian detention centre. You are often hungry because food is insufficient. You are cold because there are not enough blankets. You cough continuously because of the terrible recycled air. You are transported handcuffed and shackled to the court where you are sometimes left for long hours with no food or water. When you are moved to supposedly “protective custody”, you discover that bloody and disturbing physical violence are rampant. You and so many others live in these conditions even though you are presumed to be innocent.

     You spend over four months in detention. After an unusual six-day bail hearing along with the testimonies of five sureties and character letters from numerous academics, you are released on bail under very strict conditions which include being allowed to leave your residence only if accompanied by a surety and that you pay for a GPS monitoring system which costs around $2,000 per month. You find work doing what you have been doing for about 20 years, but you are fired after a few classes due to political pressure. Your bank account is closed. You wonder how you are supposed to pay your bills—including legal bills—and defend yourself if you are prevented from earning an income. You wonder what it means to be presumed innocent if you are already treated as if you have been convicted.

     You soldier on relying on the help of family and friends who believe in your innocence and/or want to ensure that due process is respected in Canada. You begin to learn more about the case against you. You know from one of the Crown Attorneys (before he flip-flopped on this issue) that the case against you is based on information, hypotheses, and analyses that the French intelligence service received in 1999. You have no idea how this information came about. You have no idea who said what and under what circumstances. You wonder how hypotheses and analyses become evidence in a court of law. You keep on hearing the Crown prosecutors saying that anything goes because this is an extradition. You wonder whether your government is taking the position that as a Canadian citizen you have no rights to due process because a foreign country is requesting your extradition.

     You later learn that no one involved in your case knows the source or even the reliability of the intelligence against you: not the Crown prosecutors, nor the Canadian judge, and not even the French investigators themselves, as they admit in court documents. You wonder how this can be used as “evidence” against you. It is not as if the French investigators or the Canadian government know the nature and the source of the intelligence against you but are refusing to disclose it. They simply have no idea how it came about. You wonder how you can defend yourself in these circumstances.

     You also learn that there is handwriting evidence against you. Handwritten documents from your university and immigration files were compared to five words on a hotel registration card that are believed to have been written by the suspect. One French handwriting analyst says that you could be the writer; the other analyst says you are the writer. You have no doubt that this “evidence” against you is fabricated. You know this not only because you did not fill in the hotel registration card, but also because documents used in the handwriting analysis and presumed to be written by you were actually written by your ex-wife. However, you learn that proving this is not a simple matter. First, the handwriting analysis submitted by the requesting state is presumed reliable, so the burden is on you to prove that it is unreliable. Second, you do not have an automatic right to call experts to testify on your behalf. Rather, you have to apply to the court first and convince the judge that your evidence is so overwhelming that it can render the case against you wholly unreliable.

     Your lawyer (Don Bayne) puts forward four esteemed handwriting experts who file detailed reports with the Court asserting that the handwriting evidence against you is rubbish. After a week of arguments in which the Crown prosecutors pleads with the judge not to allow you to call these experts, you win this right. You think that finally you will be able to expose this bogus evidence against you. But you soon learn that the extradition law gives enormous power to the requesting state – power that investigators in Canada do not have. Soon after the decision, the Crown attorneys request a lengthy adjournment of your extradition hearing, which is now postponed for six months. In the meantime, you live under strict conditions and you have to pay about $2,000 each month. Your application to alleviate your bail conditions so that you no longer have to pay the hefty cost of the GPS monitoring device is rejected.

     After several months and just before your re-scheduled extradition hearing is about to start, you learn that the French investigators and the Crown attorneys are withdrawing the two initial handwriting reports against you and they are filing a new report. You learn not only that you have to start the process of challenging this “new” handwriting opinion all over again, but also that the Crown attorneys are pleading with the judge not to allow you to do so. You file an abuse of process application arguing that the manner in which the handwriting analysis was handled reflects bad faith on the part of the French investigators, but the judge dismisses your application. In the meantime, you and your lawyer start going over stacks of documents that were filed as part of the request to have your residence and work place searched. To your shock, you discover that not only evidence that is helpful to you has been suppressed from the Court in Canada, but also that other evidence and the intelligence have been manipulated.

     You also learn that the French investigators knew shortly after your arrest that your palm prints do not match those left on the car used by the suspect. The French investigators never disclosed this negative result to you or to your lawyer. You also learn that the French investigators knew more than a year ago that your finger prints do not match those left by the suspect. Again this was never disclosed to you or to the Court. As one of the Crown Attorneys claimed, they are under no obligation to disclose such evidence. You also learn that the French investigators have been interviewing many people who know you, but this evidence is not presented to the Court in Canada because it is helpful to you. Anything that cast you in a positive light or is helpful to your defense is suppressed.

     Your lawyer presents the above information to the Court along with reports from three esteemed handwriting experts who rip the “new” handwriting evidence against you apart. The Crown Attorneys again fight tooth and nail to prevent you from calling this evidence. You win the right to do so. But again, your defense is limited to showing that the handwriting report filed by the French authorities is unreliable. You are prevented from calling experts who demonstrate that you did not fill in the hotel registration card and thus clear you.

     You sit through three weeks of powerful testimonies of leading experts in the field of handwriting who testify how appallingly unreliable and biased the “evidence” against you is. You know that any objective person who has heard the testimonies of these experts would conclude that a scientific handwriting analysis would actually show your innocence.

     While you wait for the final decision, you wonder whether the case against you would still have continued had Canada’s extradition law been fair and just. When you reflect on your experience, you wonder whether the case against you would have proceeded if it were not for the post 9/11 political atmosphere. When you hear the Crown prosecutors insist on using rubbish handwriting analysis opinion against you, you wonder what the Canadian government and the Department of Justice do with the recommendations of the inquires into the wrongfully convicted that were set up with the specific intention of preventing future miscarriages of justice.

While you wait, you know that your life has changed forever and that you will never get back what you lost. You hope that in the end fairness, reason, rationality, and justice will prevail...

POSTSCRIPT: On Friday February 18, the judge in Hassan’s extradition hearing stunned a packed courtroom when he decided that he will use the French handwriting analysis as evidence against Hassan, despite the fact that he finds the analysis “very problematic, very confusing, with conclusions that are suspect”.

The judge likened handwriting analysis to “pseudo-science” and found merit in the defense argument that the flawed methodology used in the handwriting analysis “results in manifestly unreliable conclusions”, but said it would violate the Extradition Act if he imposed Canadian standards of evidence admissibility on foreign evidence.