Hassan Diab and the Sorry State of Canada's Extradition Law

By Dr. Peter Gose, November 2013

When Dr. Hassan Diab’s extradition came before the Ontario Court of Appeal on November 4 and 5, more than just his personal fate was hanging in the balance. Also at stake are larger concerns about whether extradition law undermines Canadian standards of justice, including the rights of an accused person to a defense and a trial.

The allegations against Dr. Diab are serious: that he was involved in an attack outside a synagogue in Paris on October 3, 1980. One would expect an equally serious investigation. Yet the case soon went cold and was reactivated only in 1999 when France received intelligence about someone with the common Arabic name of “Hassan Diab”. Nine years later, in 2008, France submitted an extradition request to Canada for Dr. Diab. It mostly consisted of intelligence hearsay and commentary collected from unknown sources under unknown circumstances, possibly including torture. This intelligence dump offered several competing versions of who the authors of the crime might be, what their motives were, and how they entered and left France. Buried in this thicket of conjecture were two incompatible versions of how the culprits entered the country, neither one of which applies to Dr. Diab. After airing every innuendo in them, the Crown eventually withdrew the intelligence-based arguments since their unknown sources cannot be cross-examined in court, as Canadian law requires. If Dr. Diab is extradited to France, however, their courts will treat this pastiche of allegations as authoritative evidence.

The French investigating judge has always struggled to place Dr. Diab in France and at the scene of the crime. In November 2009 he obtained a court order to have the RCMP take Dr. Diab’s fingerprints, hoping that they would match those the presumed bomber left on a windshield and a signed statement. They did not. Rather than accept Dr. Diab’s innocence, France successfully fought to keep this exonerating evidence out of the extradition hearing and relied on handwriting analysis. Two French technicians compared the presumed bomber’s writing on the signed statement and a hotel registry card to what they thought were samples of Dr. Diab’s handwriting, and declared a match. When Dr. Diab showed that his (then) wife wrote some of the comparison samples, these analyses were discredited and withdrawn, but they remain part of the dossier that awaits him in France. The French then offered a third handwriting analysis that also contravened accepted methodology according to expert witnesses. It, too, expressed a “strong presumption” that Dr. Diab authored the statement and hotel registry card without explaining how he left someone else’s fingerprints while doing so. On this contrived and highly contested basis, Justice Maranger committed Dr. Diab for extradition but noted that “the prospects of conviction in the context of a fair trial, seem unlikely.”

But will a French trial be fair? French investigating judges are supposed to seek the truth impartially, but in this case, the judge assembled a dossier that suppresses strong exonerating physical evidence and fabricates a case on hearsay and bogus handwriting analyses. Beyond fairness, an even graver concern is whether Dr. Diab will be tried at all in France, or just jailed indefinitely under French anti-terrorism laws. The 2009-2011 extradition hearing presupposed that Dr. Diab is wanted for trial. France now says that it is for questioning only, an inadmissible purpose under Canadian law. Undaunted, the Harper government signed an order of surrender. This situation increasingly approximates an extraordinary rendition: an illegal delivery of an innocent man to a foreign jurisdiction where he will receive mistreatment.

The case against Dr. Diab should be thrown out of court in Canada. It grinds on at great public and private cost because extradition law presumes the reliability of a foreign state’s case, even the mockery that France put before the Canadian extradition judge.

Enough. Our courts must insist that extradition requires real evidence and defend our citizens from the kind of abusive prosecution Dr. Diab faces. France does not extradite its citizens to Canada, so why should we extradite our citizens to them? Why do we allow our extradition laws to favour foreign states so systematically at the expense of our own citizens? Against these absurdly inverted priorities, Dr. Diab’s case asserts that our courts and governments have a duty to protect our rights. We all have a stake in that!