The Hassan Diab Case: A “Dangerous New Low On What’s Acceptable To Extradite”
This past month, Hassan Diab, a 60 year old Canadian citizen was removed from Ottawa and sent to a detention facility in the vicinity of Paris, after the Supreme Court denied leave for appeal from the Ontario Court of Appeal decision to extradite him.Now in the custody of French authorities, he has been charged for first-degree murder and other offences in relation to a terrorist attack in Paris in 1980. This case is a prime example of why Canada’s extradition laws are in need of a major overhaul. A lack of procedural fairness and little protection for individuals under the Extradition Act are only one of the many reasons, advocates are calling for reform.
Diab’s frightening ordeal began in October 2007 when a French reporter for the daily newspaper Le Figaro first approached him after one of his classes at the University of Ottawa. He began to ask him questions in relation to a terrorist attack that occurred in 1980. Soon after that, Diab started being followed by unidentified agents and was later arrested by the RCMP in 2008. He is accused by French authorities for planting a bomb outside a synagogue which killed four people and injured dozens. “Diab insists he played no role in the deadly attack, saying the unwavering moral principle throughout his life has been promoting equality and respect for all.”
The law surrounding extraditions in Canada has been somewhat murky with courts often just succumbing to extradition requests without any real investigation into the reliability of the evidence adduced by the foreign state. A 2006 Supreme Court ruling known as Ferras clarified the role of the courts at the extradition hearing and “essentially told provincial courts to stop rubber-stamping extradition requests and start weighing evidence from countries requesting the extradition of Canadian citizens.” If the evidence was found to be unreliable, then the extradition request from the foreign country should be refused. Despite this ruling, in June 2011, Justice Robert Maranger of the Ontario Superior Court committed Diab for extradition to France, despite admitting the case against him was “weak”. “The following April, then-justice minister Rob Nicholson signed an extradition order surrendering Diab to France.”
In May 2014, the Ontario Court of Appeal dismissed both Diab’s appeal from committal and his application for a judicial review of the Minister’s decision to surrender. During the appeal, the Court agreed with Justice Maranger’s decision to accept into evidence a flawed report by a handwriting expert despite noting several key deficiencies. It found that the report was not “manifestly unreliable”. The Court wrote:
 As to the substance of the appellant’s arguments, the extradition judge wrote that the report “has been shown to be based on some questionable methods and on an analysis that seems very problematic” and “is susceptible to a great deal of criticism and attack”: at paras. 118,120. He described the report as “convoluted, very confusing, with conclusions that are suspect”: at para. 121.
After his appeal before the Ontario Court of Appeal was dismissed on May 15, 2014, Mr. Diab said in a written statement that:
This is a sad day not just because of this miscarriage of justice, but also because the court accepted as evidence a handwriting analysis report that has been found by five leading handwriting experts to be absolutely erroneous and completely flawed[…] Such a decision means that any Canadian citizen can be detained, uprooted, and extradited based on deeply flawed evidence that a foreign state submits. Unfortunately, Canadians have very limited rights when they are sought by a foreign state […]
Canada has an obligation to ensure that both the decision to extradite and the criminal prosecution in the foreign state meet the minimum standards of procedural fairness and complies with our constitutional standards. In this Case, Canada should have refused to surrender Diab, if his extradition would violate s. 7 of the Charter. Section 7 of the Charter requires that no one can be deprived of life, liberty and security of the person unless in accordance with principles of fundamental justice. The process which Hassan Diab was subjected to was in itself a breach of section 7, as it requires reliance on intelligence-based evidence that is itself unknown, and which he will not be able to gain access to. Section 7 also requires that the person charged with a crime know the case to be met against him. Diab’s defence argued they will not be able to probe the underlying intelligence reports and that intelligence officers will not be required to answer questions when cross-examined. The appellant argued the frailties of using such evidence:
 The source of the evidence is unknown. The circumstances in which the evidence was gathered are unknown. Often the intelligence evidence itself is unknown because, for national security reasons, the named person is denied access to it. In the appellant’s words, the intelligence information is “unsourced, uncircumstanced, and unknown”.
Moreover, they argued that French courts use evidence to prosecute terrorists and “have admitted torture-derived statements as evidence in the past”. Canada should have refused to surrender Diab unless France could satisfy its onus that the intelligence information that it relies on is not the product of torture. It is fundamentally unfair to place the onus on the person being extradited to establish plausible connection between intelligence evidence and the use of torture. General assurances by French authorities on how their system operates are not sufficient. The French authorities must specifically assure Canada that in this case, the intelligence information they will rely on at Diab’s trial is not the product of torture. Only then can we determine whether it would shock the Canadian conscience to deport Mr. Diab. “Hassan’s case presents a very real danger that basic human rights will be trampled once again in the name of an illusory and restrictive sense of security.” Canada has failed to live up to its constitutional and international obligations for the protection of fundamental human rights of all its citizens.
 Donald Pratt, a member of Diab’s support committee is highly critical of Canada’s extradition law and the treatment of Mr. Hassan Diab. See CBC News, Hassan Diab loses Supreme Court bid to halt extradition to France (November 13, 2014), online at:
http://www.cbc.ca/news/canada/ottawa/hassan-diab-loses-supreme-court-bid-to-halt-extradition-to-france-1.2833099. See Chris Cobb, The Ottawa Citizen, Canada’s extradition law: A legal conundrum (November 15, 2014), online at:http://ottawacitizen.com/news/local-news/canadas-extradition-law-a-legal-condundrum.  Justice for Hassan Diab, online at http://www.justiceforhassandiab.org/about (accessed on November 28, 2014).  Jim Bronskill, Global News, Appeal court upholds decision to extradite terror suspect Hassan Diab, online at:http://globalnews.ca/news/1333639/appeal-court-upholds-decision-to-extradite-terror-suspect-hassan-diab/.  United States of America v. Ferras, 2006 SCC 33.  Cobb, Supra n1.  Ibid.  France v. Diab, 2014 ONCA 374 at 63. [Hereinafter, Diab ONCA].  Diab ONCA, Supra n8 at 212.  Diab ONCA, Supra n8 at 205.  Diab ONCA, Supra n8 at 273. See also Human Rights Watch Report, : Preempting Justice: Counterterrorism Law and Procedures in France (July 2, 2008), online at: http://www.hrw.org/en/reports/2008/07/01/preempting-justice-0  See Diab ONCA, Supra n8 at 217.  Ibid.  Justice for Hassan Diab, online at http://www.justiceforhassandiab.org/about (accessed on November 28, 2014).