Independent Review of the Extradition of Dr. Hassan Diab
Dr. Hassan Diab, a 60-year-old Canadian citizen with no criminal record, was living in the Ottawa area and teaching at two Ottawa-area universities when he was extradited to France on November 14, 2014, to face multiple charges of murder, attempted murder and destruction of property. At the time he was surrendered to France, Dr. Diab was married with one young child and a second on the way.
The charges arose from an antisemitic terrorist attack in France on October 3, 1980. A bomb exploded outside a synagogue on Rue Copernic in the city of Paris, killing four people, injuring more than 40 others, and causing substantial damage to buildings in the area.
Many people have expressed discomfort with the fact that Dr. Diab was extradited based on a weak case presented by France, held in detention for over three years and eventually returned to Canada without standing trial.
Despite the seriousness of the charges, Dr. Diab enjoyed the unwavering support of his family and many of his university and other colleagues, who firmly believed in his innocence. That support continued throughout the more than three years Dr. Diab spent detained in a French jail awaiting trial. Ultimately, Dr. Diab was released without a trial. On January 12, 2018, the French judges investigating the case gave their decision discharging Dr. Diab and ordering his release from detention. The French prosecutors appealed. The appeal decision remains outstanding. With the assistance of Global Affairs Canada, Dr. Diab returned to Canada on January 15, 2018.
The Extradition Process in Brief
Dr. Diab’s journey through the Canadian extradition system began years earlier. France requested his extradition in November 2008 – 28 years after the bombing. Dr. Diab was arrested in Canada on November 13, 2008, and – almost four months later – was released on very restrictive bail conditions. He was committed for extradition on June 6, 2011, after a lengthy extradition hearing that involved many complex issues.
Throughout the extradition proceedings, Dr. Diab was represented by talented and dedicated defence counsel who challenged most aspects of the case against him. France was represented by Department of Justice (DOJ) lawyers who worked within the International Assistance Group (IAG). IAG counsel are expert in the field of extradition, and they demonstrated their expertise and commitment in the pursuit of Dr. Diab’s extradition. Counsel on both sides represented their respective clients with a great deal of passion and belief in their causes. That passion at times escalated markedly.
France’s case against Dr. Diab was circumstantial. It rested primarily on five pieces of evidence:
- a copy of Hassan Diab’s old passport, which showed an entry into and exit from Spain close in time to the bombing in France
- witness statements from former friends of Hassan Diab’s identifying him as a member of the Popular Front for the Liberation of Palestine
- eyewitness descriptions of a man using the pseudonym Alexander Panadriyu, who was clearly linked to the bombing on Rue Copernic
- composite sketches of Panadriyu and their purported similarity to contemporaneous photographs of Hassan Diab
- a handwriting comparison analysis prepared by a French expert that concluded Hassan Diab was the likely author of a small number of words the fictitious Panadriyu had printed on a hotel registration card.
An extradition hearing is not a trial. Extradition proceedings are meant to be fair but expeditious.
The handwriting analysis tipped the scales in favour of committal for extradition. French authorities had obtained the analysis on the advice of IAG counsel after defence experts had shown that two earlier handwriting reports relied on by France were flawed.
Without the new handwriting analysis, there likely would have been insufficient evidence to justify Dr. Diab’s committal for extradition. Even with this evidence, the extradition judge described the case against Dr. Diab as “weak” and the prospects of conviction in the context of a fair trial “unlikely”. However, as the judge correctly noted, Canadian law is clear that there is no power to deny extradition in cases that appear to the extradition judge to be weak or unlikely to succeed at trial.
Following the committal hearing, the defence made extensive submissions to the Minister of Justice on behalf of Dr. Diab opposing his surrender to France. Among other grounds, counsel argued that: France was not “trial ready” and therefore Canada had no jurisdiction to extradite Dr. Diab; and Dr. Diab would not be able to obtain a fair trial in France, where unsourced intelligence evidence could be used against him. The Minister of Justice rejected those arguments and, on April 4, 2012, ordered Dr. Diab’s surrender.
On May 15, 2014, after a lengthy hearing, the Ontario Court of Appeal dismissed both Dr. Diab’s appeal of the extradition judge’s decision to commit him for extradition and his application for judicial review of the Minister’s surrender decision. On November 13, 2014, Dr. Diab’s application for leave to appeal to the Supreme Court was denied. The next day, Dr. Diab was surrendered to France where he remained, detained, for the next three years.
Concerns about Dr. Diab’s Extradition
Dr. Diab’s lengthy detention in France and eventual return to Canada sparked widespread debate about both his treatment and Canada’s extradition process. On July 5, 2018, the Attorney General of Canada asked me to conduct an external review of Dr. Diab’s extradition. My tasks were to assess whether:
- government actors followed the law and DOJ policies and practices in the conduct of this case
- any approaches taken by IAG counsel could be improved
- there were any specific concerns that Canada should address with our foreign partner (France).
Many people have expressed discomfort with the fact that Dr. Diab was extradited based on a weak case presented by France, held in detention for over three years and eventually returned to Canada without standing trial. Dr. Diab, his counsel and his supporters view his case as emblematic of an extradition system that too heavily favours prompt compliance with Canada’s international obligations to our extradition partners over the protection of the rights of those sought for extradition.
Having reviewed the relevant materials and interviewed many of the parties, I have concluded that none of the criticisms lodged against the DOJ counsel have any merit.
On the other hand, an extradition hearing is not a trial. Extradition proceedings are meant to be fair but expeditious. Some on the government side suggest that the Diab proceedings were unnecessarily protracted because they took on features of a criminal trial rather than leaving those issues to be addressed in France. In their view, Dr. Diab’s case does not reveal any deficiencies in the extradition system. He was legally extradited having been afforded all appropriate procedural protections. The fact that he was not convicted in France does not render the extradition process flawed.
It is important to point out that my mandate did not include an examination of the Extradition Act at large or the law of extradition in Canada. The terms of reference do not direct me to evaluate or make recommendations as to the careful balancing of the broader purposes of extradition with individual rights and interests.
The fact that counsel in this case operated ethically and within the bounds of the law does not mean there is no room for improvement.
I was asked to examine the particular circumstances of Dr. Diab’s extradition and the conduct of IAG counsel in advancing the case. In this regard, I note that, in addition to the complaints about the extradition system noted above, government lawyers were specifically criticized for the energy they dedicated to advancing what appeared to be a weak case, allegedly withholding exculpatory evidence and making false representations to the extradition judge.
In conducting my review, I received the full cooperation of DOJ counsel and staff. I was also given full access to departmental files, transcripts of the court proceedings and correspondence respecting the Diab extradition.
My Conclusions in Brief
Having reviewed the relevant materials and interviewed many of the parties, I have concluded that none of the criticisms lodged against the DOJ counsel have any merit. My conclusion that DOJ counsel acted in a manner that was ethical and consistent – both with the law and IAG practices and policies – is based on a firm factual foundation.
DOJ counsel acted properly in vigorously advancing France’s case. We would expect French authorities to do the same when Canada makes an extradition request. DOJ counsel also complied with their obligations to the extradition judge and their disclosure obligations. I note that, in the course of the extradition proceedings, counsel for Dr. Diab twice brought abuse of process applications relating to the conduct of DOJ counsel (among other grounds). Neither application was successful, and the rulings were not appealed.
The world of extradition is poorly understood. Significant and sustained efforts should be made to illuminate Canada’s extradition process and increase its transparency.
Of course, the fact that counsel in this case operated ethically and within the bounds of the law does not mean there is no room for improvement. With the benefit of hindsight, it is apparent that counsel presenting the case for extradition could have entertained different approaches to the complex issues of this case, which might have resulted in more expedient and less hotly contested proceedings. Going forward, the Department of Justice should consider adopting policies and procedures that promote both fairness and efficiencies in extradition proceedings – even when these procedures are not strictly required by the law.
Chief among the lessons I learned conducting this review is that the world of extradition is poorly understood and information about how Canada’s extradition system works is difficult to access. Significant and sustained efforts should be made to illuminate Canada’s extradition process and increase its transparency. I believe these efforts could contribute to greater respect for and confidence in our extradition system.
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