Independent Review of the Extradition of Dr. Hassan Diab

Part A: Extradition Law and the Extradition Process in Canada

It is my sense that many of the criticisms and frustrations with both the extradition process and the role of IAG counsel in the Diab case were the results of misperceptions about Canada’s extradition law.

In examining the Diab case, I found there was little public information available from government sources, such as public websites, about how extradition works. As a result, the public does not have a good or accurate view of what extradition is, the laws governing the process, how hearings are conducted, the role of the extradition partner, the role of Department of Justice counsel, the judge and the Minister.

The public does not have a good or accurate view of what extradition is, the laws governing the process, how hearings are conducted, the role of the extradition partner, the role of Department of Justice counsel, the judge and the Minister.

When tough questions emerge in the midst of a case, the traditional reluctance of Crown counsel and Justice officials to comment takes over. The lack of publicly available material on the Justice website may contribute to an incomplete narrative. That requires a solution.

Improving what is generally available on the DOJ website is an easy fix. DOJ spokespersons could then refer to or incorporate that information when responding to questions about the process. Careful, timely responses, through a Departmental spokesperson, may go a long way to educate the public and dispel misconceptions. Certainly, in this matter, unanswered criticisms may have unnecessarily fuelled questions about whether Dr. Diab’s case had been handled properly and whether IAG counsel had abused their office. To be clear, they hadn’t, but when an opposite view is not fully addressed, it can contribute to a different impression.

To put what happened in the Diab case and my findings and recommendations in context, it is important for readers of this report to understand extradition law and the extradition process in Canada. This section of my report provides a brief overview of:

1. The Extradition Process

Extradition is a form of international assistance. Canada’s obligation to extradite individuals arises out of its treaty obligations implemented under the Extradition Act (“the Act”).Footnote 3 The Act gives Canada the legal basis on which to extradite persons who are sought by an “extradition partner” either for prosecution or to impose/enforce a sentence. The Act contains a schedule that designates certain states as extradition partners. In Dr. Diab’s case, France was the extradition partner (“the requesting
state”), and it sought Dr. Diab’s (“the person sought”) extradition for the purpose of prosecution.

Basic Principles of Extradition

Reciprocity and Comity

There is a mutual trust between treaty partners in each other’s criminal justice systems.

Reciprocity, comity and respect for differences in other jurisdictions are foundational to the effective operation of the extradition process.Footnote 4 The case law recognizes that Canada must honour its obligations to its extradition treaty partners, in part, because Canada relies on its partners to ensure individuals who commit crimes in our country are extradited back to face justice here.

Moreover, there is a mutual trust between treaty partners in each other’s criminal justice systems. Extradition is based on a presumption that, if extradited, the person sought will have a fair trial in the requesting country to determine his or her guilt. This is one of the central reasons why the extradition process is meant to be efficient and expeditious. In deciding whether to extradite someone, the guilt or innocence of the person sought is not a concern: that is a question that will be determined in the requesting state if extradition is ordered.

At the same time, the case law recognizes that our extradition proceedings must also protect the liberty interests of the person sought. “International comity does not require the extradition of a person on demand or surmise.”Footnote 5 That means that unless the requesting state can show there is a prima facie case – that is, there is some evidence which, if believed, is capable of establishing the person sought committed the alleged offence – the person should not be extradited.

Double Criminality

The principle of double criminality is also aimed at protecting the rights of individuals sought for extradition. This principle dictates that a person cannot be surrendered for extradition if the alleged conduct for which they are sought does not amount to a crime in Canada. Put another way, Canada should not extradite a person to face punishment in another country for conduct that would not be criminal in Canada.

Key Stages of the Canadian Extradition Process

In Canada, extradition is a three-stage process. The Act divides responsibility for these three phases between the Minister of Justice and the courts. The Minister of Justice determines whether extradition proceedings should be started and how they will end, making extradition a largely executive function that is political in nature, as will be explained later. In the middle, there is the judicial phase where a judge determines whether there is sufficient evidence to justify committal.

The three key stages to Canada’s extradition process are described here:

Stage 1 - Issuance of “Authority to Proceed”

Once a request for extradition has been made, the Minister of Justice must first determine whether extradition should proceed. When the Minister of Justice is satisfied that the foreign state’s extradition request meets the relevant treaty requirements, a document – called an Authority to Proceed (ATP) – is issued on behalf of the Minister of Justice and authorizes the commencement of extradition proceedings in Canada. The Authority to Proceed contains the name of the person whose extradition is sought and the name of the extradition partner. It also lists the offence or offences under Canadian law that would correspond to the conduct alleged against the person or the conduct in respect of which the person was convicted, as the case may be. The Authority to Proceed is similar to an information or indictment in a domestic Canadian criminal proceeding. The Minister of Justice or designate provides the authority to commence extradition proceedings in court.

The IAG reviews and coordinates all extradition requests made either by or to Canada.

With the exception of decisions on surrender pursuant to s. 40(1) of the Act (discussed below), the IAG has delegated authority to exercise all the powers of the Minister under the Act. The IAG reviews and coordinates all extradition requests made either by or to Canada. In practice, the Minister is generally not personally involved in the review or approval of extradition requests going ahead or the issuance of the ATP. Although the Minister may be advised of requests once made or soon after they are made, the review is conducted on behalf of the Minister by officials within the IAG.

Stage 2 – Extradition Hearing

When an Authority to Proceed is issued, an extradition hearing (also known as a committal hearing) is held before the Superior Court of the province where the person sought is located. This is the judicial phase of the extradition proceedings. An evidentiary hearing is held in which the extradition judge must decide the following issues when (as in the Diab case) the person is being sought for prosecution:

IAG counsel took on a litigation role in Dr. Diab’s case because of their familiarity with the file, their fluency in French, their litigation experience and because the extradition hearing took place in Ottawa, where the IAG is located.

At the extradition hearing, the requesting state is represented by counsel for the Attorney General. These lawyers work within the Federal Department of Justice. Unusually, in Dr. Diab’s case, counsel within the IAG took on this role. Typically, IAG counsel act in an advisory capacity and DOJ counsel in the various regional offices across Canada, who specialize in litigation and who are not members of the IAG, represent the requesting state at the extradition hearing. IAG counsel took on a litigation role in Dr. Diab’s case because of their familiarity with the file, their fluency in French, their litigation experience and because the extradition hearing took place in Ottawa, where the IAG is located.

If a prima facie case is not made out that the person sought committed the offence set out in the Authority to Proceed, the extradition judge discharges the person and the proceedings are over (subject to an appeal by the Attorney General). If a prima facie case is made out, the extradition judge orders committal. The matter then moves to the surrender phase. In some instances, a person arrested pursuant to a request for extradition, will consent to committal and move straight to the surrender phase.Footnote 6

Stage 3 - Surrender Decision

This stage is often referred to as the executive phase of the extradition proceedings. If the extradition judge orders the committal of the person sought for extradition, Canada’s Minister of Justice must then personally decide whether to order the person’s surrender to the extradition partner in accordance with section 40 of the Extradition Act. This decision is primarily political and the Minister has significant discretion. That said, surrender must not violate the CharterFootnote 7 or be contrary to the provisions of the Act. Sections 44 to 47 of the Act provide several grounds on which the Minister may or must refuse surrender. The Minister’s decision involves weighing different factors, including Canada’s treaty obligations, the person’s constitutional rights and humanitarian considerations.

Where surrender is contested, special counsel in the IAG’s office, assigned to support the Minister, prepares a legal memorandum for the Minister’s consideration.

The extradition judge in the committal phase and the Minister in the surrender phase have distinctly different functions. It is not the Minister’s role to review the findings of the committal judge, to consider whether there is sufficient evidence for extradition, or determine the guilt or innocence of the person sought for extradition. That said, some courts have recognized that there may be exceptional circumstances where a person sought for extradition provides such compelling exculpatory evidence that the Minister must consider it in making the surrender decision. These circumstances are limited to situations where the person sought for extradition demonstrates: (1) evident weakness in the requesting state’s evidence; and (2) surrender will cause the individual serious hardship in presenting his or her defence at trial in the requesting state.Footnote 8

The test for refusing surrender on s. 7 grounds is a strict one, and only precludes surrender in cases of a “very exceptional nature” where surrender to the requesting state would “shock the conscience” of Canadians.

In some cases, the person sought may consent to their surrender.Footnote 9 Where surrender is contested, special counsel in the IAG’s office, assigned to support the Minister, prepares a legal memorandum for the Minister’s consideration. That memorandum includes: a description of the extradition request; the circumstances of the alleged offence and person sought; a history of the proceedings, including the extradition hearing; a description of any submissions made on behalf of the person sought opposing surrender; and any other information relevant to the Minister’s decision, including, potentially, information obtained from the requesting state.

The Act provides that the Minister, having considered all relevant circumstances, must refuse to make a surrender order if satisfied that surrender would be “unjust or oppressive” or if the request is made for an improper purpose enumerated in the Act (e.g. because of race, religion, ethnic origin).Footnote 10 The case law establishes that surrender must also be refused where it would violate s. 7 of the Charter, the right not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice. However, the test for refusing surrender on s. 7 grounds is a strict one, and only precludes surrender in cases of a “very exceptional nature” where surrender to the requesting state would “shock the conscience” of Canadians.Footnote 11

Extradition also engages s. 6 of the Charter, the right to remain in Canada. The Supreme Court has found that the extradition of a Canadian citizen is a prima facie infringement of section 6 of the Charter but will generally be justified under s. 1 of the Charter as a reasonable limitation of the right to remain in Canada.Footnote 12 The Minister’s assessment of whether the infringement of the s. 6 right of the person sought is justified under s. 1 involves a determination of whether Canada should defer to the interests of the requesting state or prosecute the individual in Canada. In cases where there is no jurisdiction to prosecute the offence in Canada, s. 6 considerations play a limited role in the Minister’s decision.Footnote 13

Provided the Minister applies the correct legal test and does not otherwise err in law or contravene the principles of natural justice, the decision that surrender would not be contrary to the Charter or the provisions of the Act is entitled to considerable deference.Footnote 14

France and Canada are treaty partners.

Who is an “Extradition Partner”?

“Extradition partners” include:

France and Canada are treaty partners.

Appeal Rights

Both the person sought and the Attorney General have a right to appeal the committal or discharge order of the Superior Court judge to the applicable provincial court of appeal. The person sought also has a right to apply to the applicable provincial court of appeal for a judicial review of the Minister’s surrender decision. The appeal and judicial review are often heard together.

A decision of the court of appeal may be appealed to Canada’s highest court, the Supreme Court of Canada, with leave of that Court.

2. Evidence Required for Extradition (the Record of the Case)

As noted above, the second stage of the Canadian extradition process is judicial. The extradition hearing involves an assessment of the evidence presented in court against the person sought for extradition.

The extradition hearing involves an assessment of the evidence presented in court against the person sought for extradition.

In the case of a person who is sought for prosecution, a requesting state must provide Canada with the following evidence:

Summary of the Evidence of Criminal Conduct

The evidentiary process most commonly used when seeking extradition from Canada is the Record of the Case (ROC) format (see section 33 of the Extradition Act).

Prior to 1999, the Act required that evidence in support of an extradition request be in sworn form and admissible according to the laws of Canada.Footnote 15 That sometimes produced a very cumbersome process with attendant delays. In 1999, in a partial response to criticisms, including those from extradition partners, Canada amended the Act.Footnote 16 The amended Act aimed to modernize and streamline Canada’s extradition procedure. Among other things, it was intended to make the judicial process of extradition more accessible to some of Canada's extradition partners, particularly civil law countries, who previously had difficulty complying with Canadian evidentiary rules such as, for example, those relating to hearsay.

In a case like Dr. Diab’s, where the person is being sought for prosecution (as opposed to being sought to serve a previously imposed sentence), the ROC is a summary of the evidence available to the requesting state to prosecute the person. For example, the ROC includes summaries of the relevant portions of witness statements, forensic and other reports, the fruits of intercepted communications and other information.

In a case like Dr. Diab’s, where the person is being sought for prosecution (as opposed to being sought to serve a previously imposed sentence), the ROC is a summary of the evidence available to the requesting state to prosecute the person.

When requesting states use the ROC format, they do not need to include the sworn statements/depositions of witnesses, actual reports (including forensic reports) or every aspect of the investigative file. The requesting state may attach documentary exhibits to the ROC (e.g. a report central to the case); however, copies of original evidence are not required. A detailed summary of the contents of the statements, reports and other documents – the key evidence against the person sought – is all that is required subject to the necessary certification from a responsible authority discussed below.

The ROC may also include a summary of relevant evidence gathered in Canada and shared with the requesting state. Unlike evidence collected in and presented by the requesting state, evidence gathered in Canada must satisfy the rules of evidence under Canadian law in order to be admitted.

Identification Evidence

In addition to summarizing the evidence in support of the extradition offence(s), the requesting state must include identification evidence in the ROC. This evidence must satisfy the extradition judge that the person before the court is the person sought by the extradition partner.

Certification

To be admissible in a Canadian court, the ROC must be certified in accordance with Canada’s Extradition Act.

The investigating judge in France certified that the evidence contained in the ROC was available for trial and had been gathered according to French law.

In the case of a person sought for prosecution, a judicial or prosecuting authority in the requesting state, who is familiar with the case, must certify that the evidence summarized or contained in the ROC is:

The certification of the ROC makes its contents presumptively reliable for the purpose of the Canadian extradition hearing.

In Dr. Diab’s case, the investigating judge in France certified that the evidence contained in the ROC was available for trial and had been gathered according to French law.

3. The Restrained Role of Extradition Judges and the Process for Challenging the Record of the Case

In M.M., the Court held that extradition judges have a restrained role in assessing the reliability of evidence.

United States of America v. Ferras found the ROC method (described above) to be constitutionally sound. The Supreme Court held that the sections of the Act that permit a committal on the basis of an ROC do not violate the right of a person sought under s. 7 of the Charter because:

[T]he requirements for  committal of s. 29(1), properly construed, grant the extradition judge discretion to refuse to extradite on insufficient evidence such as where the reliability of the evidence certified is successfully impeached or  where there is no evidence, by certification or otherwise, that the evidence is available for trial. Footnote 17

In Ferras, the Supreme Court found that an extradition judge, unlike a judge at a preliminary inquiry, may engage in a limited weighing of the evidence to determine whether there is a “plausible case”. When the evidence summarized in the ROC is so defective or appears so manifestly unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case is considered insufficient for committal.Footnote 18 This judicial review ensures that the extradition process does not “deprive the person sought of the independent hearing and evaluation required by the principles of fundamental justice applicable to extradition”.Footnote 19 This finding was a significant change from the jurisprudence before Ferras which, under the previous version of the Extradition Act, restricted the extradition judge’s inquiry to the sufficiency of the evidence.

Following the Supreme Court’s ruling in Ferras, the role of the extradition judge in scrutinizing the reliability of the evidence for committal was the subject of some disagreement between provincial appellate courts. The issue was addressed squarely by the Supreme Court in United States of America v. M.M.Footnote 20 where Justice Cromwell, writing for a majority of the Court, provides a helpful review of the extradition process, especially the committal stage.

To be admissible, the defence evidence must be relevant to the restrained task of the extradition judge. Evidence that merely invites the extradition judge to assess the credibility of the evidence in the ROC or establishes a basis for competing inferences will not be admissible.

In M.M., the Court held that extradition judges have a restrained role in assessing the reliability of evidence. They are not to weigh competing inferences that might arise from the evidence. Moreover, the Supreme Court confirmed that extradition judges have no power to deny committal “simply because the case appears to the extradition judge to be weak or unlikely to succeed at trial”.Footnote 21

The starting point is that the requesting state’s certified evidence is presumptively reliable. The person sought may seek to rebut this presumption by demonstrating that the evidence is “manifestly unreliable” and is permitted to adduce evidence to undermine the reliability of the requesting state’s evidence. However, meeting this standard of manifest unreliability is difficult because it requires showing fundamental inadequacies or frailties in the material relied on by the requesting state. To be admissible, the defence evidence must be relevant to the restrained task of the extradition judge. Evidence that merely invites the extradition judge to assess the credibility of the evidence in the ROC or establishes a basis for competing inferences will not be admissible.

To justify committal, there must be sufficient evidence on the basis of which a reasonable, properly instructed jury could reach a guilty verdict.

Similarly, evidence that establishes a defence or attempts to establish an exculpatory account of events (such as an alibi or self-defence claim) will generally be inadmissible “as it does not affect the reliability of the requesting state’s evidence”.Footnote 22

There is a limited exception to these general rules. It is possible that exculpatory evidence could meet the high threshold for showing that the requesting state’s evidence should not be relied on, where the defence evidence is “of virtually unimpeachable authenticity and reliability”. Where such evidence contradicts the ROC, it could rebut the presumption of reliability and could therefore justify refusal to commit. However, as the Supreme Court made clear in M.M., such situations will be “very rare”.Footnote 23

Extradition judges play an important but “circumscribed and limited screening
function” at the committal phase of the proceedings.Footnote 24 The role of the judge is to decide whether 1) the person before the court is the person sought; and 2) there is evidence admissible under the Extradition Act and available for trial that would justify committal for trial in Canada, had the crime occurred here. To justify committal, there must be sufficient evidence on the basis of which a reasonable, properly instructed jury could reach a guilty verdict.Footnote 25

4. Disclosure in Extradition Proceedings

In Dr. Diab’s case, there was some criticism of counsel for the Attorney General for their approach to disclosure. It has been alleged that both France and DOJ counsel improperly held back exculpatory evidence. These complaints raise questions about the relevant duty to disclose in extradition proceedings. Do the disclosure obligations that ordinarily apply to Crown counsel in Canadian criminal proceedings apply to extradition cases? The answer is no.

Do the disclosure obligations that ordinarily apply to Crown counsel in Canadian criminal proceedings apply to extradition cases? The answer is no.

Persons familiar with the Canadian domestic criminal justice system are aware of the seminal case of R. v. Stinchcombe.Footnote 26 That decision clarified and enshrined the Crown’s legal duty to disclose all relevant information to the defence. The Supreme Court has identified this as a principle of fundamental justice under s.7 of the Charter that informs all domestic prosecutions. If the prosecutor falls short in this obligation, courts have a supervisory jurisdiction. In the criminal or quasi-criminal context, disclosure responds to the right to make full and fair defence in a Canadian trial.

Extradition is a very different process. Extradition is a creature of the Extradition Act as amplified by treaties and agreements between extradition partners. It is meant to be a fair but expeditious mechanism to determine whether a person should be sent to the requesting state for trial. The extradition proceeding is not meant to be or substitute for a trial. The trial, of course, will be in a foreign country based on that country’s laws and the evidence it may have or will collect. At the extradition stage, guilt or innocence is not a relevant issue.

The scope of disclosure demanded by s. 7 of the Charter in the context of extradition proceedings is constrained by the limited function of the extradition judge and the Minister under the Act and by the need to avoid imposing Canadian notions of procedural fairness on foreign authorities. Therefore, neither the requesting state nor counsel for the Attorney General acting on the requesting state’s behalf, are required to disclose all relevant evidence. They need only disclose that evidence on which they rely in seeking extradition.

Neither the requesting state nor counsel for the Attorney General acting on the requesting state’s behalf, are required to disclose all relevant evidence.

The Supreme Court of Canada in United States v DynarFootnote 27 and United States of America v. KwokFootnote 28 clearly and affirmatively resolved the non-application of Stinchcombe disclosure in the extradition setting. In these cases, the Supreme Court made clear that the requesting state and counsel for the Attorney General are not required to disclose their entire case and have no obligation to disclose potentially exculpatory evidence. The Act supports this limited disclosure obligation. Section 33 requires only a summary of the evidence available to the prosecution. The ROC need only disclose – in summary form – sufficient admissible and available evidence to permit a properly instructed jury, acting reasonably, to conclude that the person sought engaged in the alleged conduct in the Authority to Proceed. Nothing more is required. Of course, if something is omitted, there is always the risk that what is in the ROC may fall short of satisfying the extradition judge that extradition should be ordered.

To illustrate the point further, counsel for the Attorney General, who represents the requesting state at committal proceedings in Canada, does not have access to the foreign file. The extradition judge does not have control over the investigating agency or its file (in this case, an independent magistrate in a foreign country). Counsel for the Attorney General also has no control over and may not be privy to what the foreign country may present back home or what avenues it may still be pursuing.

To put it another way, although the IAG is comprised of counsel who are well familiar with their domestic Stinchcombe obligations and extradition pertains to criminal matters, extraditions are not criminal prosecutions. IAG counsel are not required to provide – nor could they deliver – Stinchcombe disclosure in the many extradition requests that Canada receives every year.

The Supreme Court has confirmed that Stinchcombe-type disclosure is also not required at the surrender stage. The Minister has a duty of procedural fairness to present the person sought with adequate disclosure of the case against them and provide a reasonable opportunity for the person to state their case against surrender. These requirements entitle the person sought to disclosure of any materials considered by the Minister in ordering surrender, subject to claims of privilege, as well as “sufficient reasons” for the Minister’s decision to order surrender.Footnote 29