Independent Review of the Extradition of Dr. Hassan Diab
Part B: The Chronology of the Case
Having a Canadian citizen sit in a foreign jail for over three years only to be released is troublesome. On the other hand, extradition will sometimes result in a person going free. As Canadians, we see our robust justice system result in accused persons being found not guilty. We should not be surprised if that happens in other democratic justice systems. At the same time, we expect that Canadians extradited to foreign countries will not sit in jail for lengthy periods of time without facing trial.
Having a Canadian citizen sit in a foreign jail for over three years only to be released is troublesome. On the other hand, extradition will sometimes result in a person going free.
The question is: what can we learn from Dr. Diab’s case? Did government actors follow the law? Did they act ethically? Did we do what we could to ensure that a citizen was supported during detention? Did we do what we could to ensure that detention abroad was not going to be prolonged? To obtain answers to these important questions, it is helpful to start with a narrative of the journey that led the French authorities to request Dr. Diab’s extradition almost three decades after the tragic bombing occurred.
1. The Investigation in France
On October 3, 1980 – the Jewish holiday of Simchat Torah – a bomb exploded outside a synagogue at 24 Rue Copernic in Paris, France, killing four, wounding more than 40, and damaging the surrounding buildings.
The investigation in France took place in stages.
The initial investigation, in the immediate aftermath of the bombing, led police to conclude that the bomb had been planted on a motorcycle parked outside the synagogue. The motorcycle, which was traced to a specific dealership, was sold on September 23, 1980, to a man using the pseudonym Alexander Panadriyu. Documents used to buy the motorcycle led investigators to the Celtic Hotel, near Rue Copernic, where Panadriyu had stayed on September 22, 1980.
At the Celtic Hotel, Panadriyu had signed a hotel registration card. Hotel employees who gave statements to police reported that Panadriyu personally completed the registration card. He printed five words on it in block letters: PANADRIYU, ALEXANDER, LANARCA, TECHNICIAN and CYPRUS. There was also a date written on the registration card.
The registration card was given to police who, according to the Record of the Case (ROC), took all normal precautions to have the card examined by their fingerprint department. However, according to the ROC, the examination did not reveal any useable fingerprint traces.
After Dr. Diab’s return to Canada in 2018, the CBC reported that, in 2007, the Institut Génétique Nantes Atlantique, a forensic laboratory in France which judicial authorities sometimes use for testing, discovered there was a useable print on the hotel registration card. At some point, a print on the card was compared with Dr. Diab’s print. It was not a match. It is not clear from media reports when the comparison was done. In any event, the results of the comparison were not included in the ROC or shared with counsel with the IAG of the Department of Justice, the group responsible for fielding and helping to guide foreign requests for extradition and mutual legal assistance. It appears Dr. Diab became aware of the results of this comparison only after he was extradited to France. Footnote 30
In the course of the investigation, police discovered that the fictitious Panadriyu had been arrested a few days before the bombing for stealing a pair of pliers from a Paris hardware store. He was not charged and therefore was not prosecuted. Panadriyu signed a police report before being released but he was not photographed. The police report was found in archives decades later. After the original ROC was entered in the extradition proceedings, the police report became of significant interest as authorities thought it might contain fingerprints that matched those of Dr. Diab. It did not.
Employees at the dealership where the motorcycle was purchased, employees at the Celtic Hotel, a sex worker who had been with Panadriyu at the hotel, an employee at the hardware store and the police officers involved in the investigation of the theft of the pliers all provided physical descriptions of Panadriyu. Composite sketches of Panadriyu were made based on those descriptions. The various witnesses offered divergent descriptions in terms of Panadriyu’s age, hair colour and length, whether or not he wore glasses, and whether or not he sported any facial hair. The Honourable Justice Robert Maranger, who presided over Dr. Diab’s extradition hearing, concluded that, at most, the descriptions supported the proposition that Panadriyu was a male between 25 and 30 years of age, about 1.65 to 1.75 metres tall, with a slight build. Footnote 31
A car linked to the plot was found abandoned. It had a palm print on the inside back window. That palm print was compared with Dr. Diab’s palm prints, which were taken many years later after he was arrested in Canada. It was not a match.
In October 1981, on the same Jewish holiday, a synagogue in Antwerp, Belgium, was the target of a bombing, which also resulted in loss of life, injuries and property damage. An investigation was undertaken to determine whether there were any similarities between the two attacks.
In 1982, the French intelligence service received information that the buyer of the motorcycle used in the Paris attack was a man named Hassan, and that he had acted on behalf of a splinter group of the Popular Front for the Liberation of Palestine (PFLP).
The initial investigation did not lead to any arrests and, after 1982, it appears the investigation lay dormant for many years.
The second stage of the investigation began in 1999, when the French intelligence service passed on information to investigators from an unnamed source about several people involved in the bombing. This intelligence information identified Hassan Diab as the bomber in both the Rue Copernic and Antwerp attacks.
In 1999, the French also received information that, in October 1981, Italian authorities at a Rome airport seized from Ahmed Ben Mohammed (who was allegedly a member of the PFLP), a Republic of Lebanon passport, issued on May 10, 1980, in the name of Hassan Naim Diab, born in 1953 in Beirut. France obtained a copy of the passport from the Italian authorities and were able to determine that it contained the following entries:
- an exit stamp from Beirut dated August 22, 1980
- a Spanish visa issued September 17, 1980
- an entry stamp into Spain dated September 18, 1980
- an exit stamp from Spain dated October 7, 1980
- an Algerian visa issued October 5, 1981
- an exit stamp from Beirut dated October 8, 1981.
The French theory was that Dr. Diab travelled to and from Spain, shortly before and after the bombing, using his own passport but entered and exited France using a false document. The ROC also established that Hassan Diab applied for a new Lebanese passport on May 17, 1983. When Lebanese authorities asked what had happened to his May 10, 1980 passport, he told them he had lost it in April 1981.
French authorities came to learn that Dr. Diab was living in Canada. The interest in Dr. Diab at this next stage is described below.
2. The Pre-Arrest Involvement of the Canadian Authorities
The IAG first learned of France’s interest in Dr. Diab through the newspaper article published in Le Figaro.
In October 2007, the French newspaper, Le Figaro published an article claiming that 27 years after the bombing on Rue Copernic, the French authorities were on the trail of a suspect in Canada, Dr. Diab. Le Figaro reported that the police suspected Dr. Diab, who at the time was a 55-year-old professor teaching in Ottawa after living for many years in the United States, to be the alleged leader of the bombing plot. Le Figaro also reported that, at the time of the bombing, Dr. Diab was a member of the PFLP. According to the article, his identity and ties to the Rue Copernic bombing were revealed by German intelligence gathering.
Dr. Diab was interviewed and told the reporter from Le Figaro that he was a victim of mistaken identity. He denied ever belonging to a Palestinian organization.Footnote 32
IAG counsel specialize in: working with foreign countries in pursuing extradition; obtaining evidence for use at home or abroad; and developing and maintaining relationships with foreign legal systems principally through bilateral and multilateral treaties.
On November 3, 2007, an article in the National Post reported that Dr. Diab, speaking through his then lawyer, René Duval, denied any involvement with the bombing, which he had only learned of when approached by the journalist from Le Figaro. Mr. Duval said that Dr. Diab was “open to meeting with French authorities for questioning in Canada, in accordance with the Canadian legal process”.Footnote 33
At that stage, France had made no official request to Canada for assistance. Indeed, the IAG first learned of France’s interest in Dr. Diab through the newspaper article published in Le Figaro. Jacques Lemire, counsel with the IAG, who was stationed in France in 2007 and had been there since 2005, reported the media coverage to his colleagues in Ottawa.
IAG counsel, as the name indicates, specialize in: working with foreign countries in pursuing extradition; obtaining evidence for use at home or abroad, including for use in extradition; and developing and maintaining relationships with foreign legal systems principally through bilateral and multilateral treaties.
In Canada, the IAG acts as a central resource with a focus on advice and quality control. The Bureau de l’entraide pénale internationale (BEPI) – a group within the French Department of Justice – is the French equivalent of the IAG. Like the IAG, the BEPI acts as the central authority for extradition matters in France but, unlike the IAG, it does not provide parallel advice and quality control functions. The difference is likely due to the prominent role of judges in gathering evidence for terrorism and other serious cases in France.
If investigating judges in France wish to review telephone records… they simply request them.
Canada’s primary extradition partner is the USA; however, because of strong France- Québec connections, special arrangements have been developed to address extraditions with France. In 2003, the IAG created a small virtual “France- Canada” team, which could be drawn together as needed, to facilitate mutual legal assistance and extradition requests between the two countries.
Beginning that same year, Canada and France stationed a liaison person in each other’s capital. The liaison role was created in response to difficulties ensuring effective cooperation between the two countries. Canada, for example, had a difficult time obtaining basic documents, such as criminal records, from France. On the other hand, when France made requests of Canada, it also experienced difficulties obtaining the necessary supporting documents. There was a perception that the lack of effective cooperation contributed to lengthy delays in high-profile extradition cases.
The difficulties largely stemmed from differences in the two countries’ legal systems. If investigating judges in France wish to review telephone records, for example, they simply request them. French officials making extradition or evidence gathering requests of Canada were not familiar with the process of providing “grounds” for those requests. A significant part of the IAG liaison’s role was to explain to French authorities that, to obtain the information or action they wanted in Canada, they needed to provide information and evidence to support their request. Reviewing requests and materials to be included in the ROC and providing suggestions to improve the materials was a regular part of the duties of the IAG liaison in France.
Leading up to and at the time of the Diab extradition proceedings, Claude LeFrançois headed the “France-Canada” team in Canada and Jacques Lemire headed the team in France.
The liaison position was operational. Mr. Lemire’s primary role was to facilitate extradition and mutual legal assistance requests between the two countries.
I understand that the liaison position held by Mr. Lemire at the time of Dr. Diab’s extradition no longer exists. From my review of these proceedings, it is apparent that he played a crucial and helpful role. (In Part C of my report, I explore consideration of reinstating this position.)
Requests for Mutual Legal Assistance
France made its first formal request to Canada for assistance in gathering evidence in January 2008.
Mutual legal assistance (MLA) is a formal process by which countries share evidence and provide other types of assistance to one another to advance criminal investigations and prosecutions. The Mutual Legal Assistance in Criminal Matters Act gives Canada the legal basis to obtain court orders at the request of and on behalf of other countries.
France made its first formal request to Canada for assistance in gathering evidence in January 2008. On January 28, 2008, the Royal Canadian Mounted Police began surveillance on Dr. Diab in Canada. The surveillance was conducted at the request of France. The goals were to: obtain information on the telephone numbers used by Dr. Diab in Canada; track his movements in the Ottawa area; and seize any discarded evidence to test for palm and fingerprints. Though the surveillance was intended to be conducted surreptitiously, Dr. Diab on several occasions noted that people were following him and contacted the Ottawa police to make complaints. Surveillance continued and increased in frequency until Dr. Diab’s arrest on November 13, 2008.
In March 2008, Mr. Lemire met with Marc Trévidic, the juge d’instruction assigned to Dr. Diab’s case in France. A “juge d’instruction” or investigative judge has no equivalent in Canada. France has an inquisitorial system of law. In such systems, pre- trial investigations into allegations of criminal behaviour may be directed either by a prosecutor or an investigating judge. Allegations relating to terrorism are generally handled by one of a specialized team of investigating judges. The investigative judge is an independent examining magistrate whose role is to investigate alleged offences and make a recommendation for prosecution. The task includes investigating the facts to determine whether they amount to an offence, and investigating to determine who committed the alleged offence.
In his discussions with Judge Trévidic, Mr. Lemire provided guidance on France’s requests for mutual legal assistance and also assisted in arranging a trip to Canada in April 2008 for the Judge.
The French officials told the Canadians about their case against Dr. Diab and outlined their evidence.
Judge Trévidic, along with other French officials, met with officials from the RCMP and members of the IAG, including Tom Beveridge, a former manager at the IAG, and Claude LeFrançois, head of the France-Canada team at the IAG. This was Mr. LeFrançois’s first involvement with the file.
The meeting lasted for several hours. The French officials told the Canadians about their case against Dr. Diab and outlined their evidence. According to Canadian officials, none of it was overwhelming but the French officials did mention that they had expert handwriting reports.
Shortly after the meeting, it was determined that France would make an extradition request.
On June 5, 2008, the French authorities sent a mutual legal assistance (MLA) request to Canada. The French sought Canada’s assistance in gathering Dr. Diab’s telephone and email records for the period of October 2007 to January 2008.
In October 2008, the French made a further request for mutual assistance seeking execution of search warrants at Dr. Diab’s home, offices and vehicles. This request also included a request for Dr. Diab’s palm prints. The palm prints were needed in order to conduct a comparison with the palm print found on a car linked to the bombing. As will be described further below, the comparison did not reveal a match.
The Initial Handwriting Reports
In support of the June 5, 2008, Mutual Legal Assistance Treaty (MLAT) request, the French authorities provided a variety of materials, including two handwriting reports prepared by two handwriting comparison experts: Dominique Barbe-Prot and Evelyne Marganne.
France, through international letters rogatory, had obtained immigration and university files from the USA for Dr. Diab and his then wife, Nawal Copty. Letters rogatory is a long-recognized method by which parties in one country request evidence in another country through court and state channels. The purpose of the letters rogatory was to obtain samples of Dr. Diab’s handwriting. Unbeknownst to the French investigators, samples of his then-spouse’s handwriting were mixed in with Dr. Diab’s samples. Two handwriting comparison experts, Ms. Barbe-Prot and Ms. Marganne, compared the samples to the handwriting on the Celtic Hotel registration card. Each proffered an opinion as to the probability that Hassan Diab was the individual who filled out the hotel card and, therefore, was Alexander Panadriyu.
On the basis of the materials provided by France, counsel at IAG made an evidence gathering application for Dr. Diab’s telephone and email records on September 11, 2008 and an application for the required search warrants on November 12, 2008. The handwriting reports of Ms. Barbe-Prot and Ms. Marganne were attached to the affidavit of the RCMP Sergeant Robert Tran sworn in support of the evidence gathering applications.
3. An Overview of Dr. Diab’s Extradition Proceedings in Canada
On November 7, 2008, Canada received the official request for Hassan Diab’s arrest for the purpose of extradition to France to face charges related to the Paris bombing.
The original Record of the Case (later supplemented) referred to and appended the reports of the two French handwriting experts.
The extradition proceedings that followed were protracted.
Dr. Diab was arrested in Canada on November 13, 2008, and detained until his release, on very strict bail conditions, on March 31, 2009.
The Authority to Proceed – the first stage of the extradition proceedings – was issued on behalf of the Minister of Justice on January 15, 2009.
Justice Maranger presided over the second stage of the proceedings: the extradition hearing. At this committal stage of the proceedings, the handwriting on the hotel registration card turned out to be the key piece of evidence. The original ROC (later supplemented) referred to and appended the reports of the two French handwriting experts, Ms. Barbe-Prot and Ms. Marganne. While the handwriting reports did not have to be attached to the ROC, their existence would have been shared with the defence, in any event, as part of a transmission of evidence to France under the MLA framework that governs partner states requesting other partners to secure evidence abroad. When mutual legal assistance is being sought, the information gathering process is confidential; however, once the evidence has been obtained and Canada is seeking to send it to the requesting state, the affected party must be informed, subject to the decision of the sending hearing judge in the particular circumstances of a case to decide otherwise.
Defence counsel for Dr. Diab sought time to investigate potential evidence to try to undermine the reliability of the two handwriting reports.
Defence counsel for Dr. Diab sought time to investigate potential evidence to try to undermine the reliability of the two handwriting reports, and secured a number of opinions from leading experts in the field. The defence experts concluded that the two French experts had mistakenly relied on, in part, some handwriting samples that belonged to Dr. Diab’s former spouse. The presiding Judge ruled that the defence reports were admissible and permitted some of the defence handwriting experts to testify. At the urging of counsel for the Attorney General, the investigating judge in France requested a new handwriting report. The new report, authored by Anne Bisotti, also from France, concluded that there was a strong presumption that Dr. Diab was the author of the words on the registration card. Reliance on the two original impugned reports was withdrawn.
The defence launched two unsuccessful abuse of process applications in which they, among other grounds, unsuccessfully raised the counsel for the Attorney General’s tactics and posture regarding the process of securing the replacement report. An abuse of process application, where successful, permits a judge to stay the proceedings, or provide another favourable remedy, such as the exclusion of evidence, if the applicant establishes that state misconduct compromised the fairness of the court proceedings or otherwise impinged on the integrity of the justice system.
Despite the length and complexity of the judicial proceedings, the issues at the extradition hearing were ultimately limited in scope. The supplemented ROC provided compelling circumstantial evidence that the fictitious Alexander Panadriyu was one of the parties responsible for the bombing. It also established that Panadriyu stayed at the Celtic Hotel in the city of Paris and filled out a hotel registration card in late September 1980. It also alleged that he had signed a police report when he was arrested for the theft of a pair of pliers in and around the same time frame.
The issue of committal ultimately turned on whether there was sufficient evidence within the ROC, as supplemented, to support the proposition that Dr. Diab was the man posing as Panadriyu. To that end, the new handwriting analysis was the crucial link. Justice Maranger, in his reasons for decision committing Dr. Diab for extradition, held:
The evidence that tips the scale in favour of committal is the handwriting comparison evidence.
The evidence that tips the scale in favour of committal is the handwriting comparison evidence. Once found to be reliable for the purposes of extradition i.e. not manifestly unreliable evidence, the question became whether a jury considering the handwriting evidence together with the other evidence in the ROC, could find as a fact that Mr. Diab was Alexander Panadriyu and thus one of the persons responsible for the bombing. The short answer is yes. Consequently, when all is said and done, a committal order is warranted.
The Bisotti [handwriting] report was subjected to very detailed analysis and examination during the course of these proceedings. It is the key evidence linking Mr. Diab to the crime. Although I could not conclude it was manifestly unreliable, it was nonetheless highly susceptible to criticism and impeachment.
The fact that I was allowed to scrutinize the report to the degree that I did, together with the lack of other cogent evidence in the ROC, allows me to say that the case presented by the Republic of France against Mr. Diab is a weak case; the prospects of conviction in the context of a fair trial, seem unlikely. However, it matters not that I hold this view. The law is clear that in such circumstances a committal order is mandated: see Anderson, supra, at para. 28; Thomlison, supra, at para. 47.
Therefore, the application for committal is granted. Hassan Diab is ordered committed into custody pursuant to s. 29(1)(a) of the Extradition Act for the corresponding Canadian offences contained in the authority to proceed to await a decision on surrender.Footnote 34
The executive stage followed committal. On April 4, 2012, the Minister of Justice, after considering extensive submissions made on Dr. Diab’s behalf by his counsel, Donald Bayne, ordered Dr. Diab’s unconditional surrender to France. Dr. Diab’s appeal to the Court of Appeal was dismissed and his application for leave to appeal to the Supreme Court denied. He was extradited to France on November 14, 2014.
A more detailed description of Dr. Diab’s journey through the executive and judicial phases of extradition is set out below.
4. The Arrest, Bail Hearing, and Authority to Proceed
On November 7, 2008, Canada received the official request for Hassan Diab’s arrest for the purpose of extradition to France. The French evidence in support of its request for provisional arrest included the following:
- Ms. Barbe-Prot’s and Ms. Marganne’s handwriting analyses comparing the handwriting on the hotel registration card completed by “Panadriyu” on October 2, 1980 and “known handwriting samples” of Hassan Diab;
- comparison of police sketches of the suspect made at the time of the bombing and contemporaneous photographs of Hassan Diab; and
- evidence from several sources (some unnamed) to the effect that Hassan Diab was a member of the PFLP and one of several members who committed the bombing on Rue Copernic.
Dr. Diab was arrested at France’s request pursuant to a provisional arrest warrant issued under the Extradition Act on November 13, 2008. His fingerprints and palms prints were taken by the RCMP in Ottawa. On the same day, search warrants were issued and executed at his residence, offices and vehicles.
Within a week, the palm prints taken from Dr. Diab in Canada were compared to those provided to the RCMP by French officials, which were found on the inside back window of a car implicated in the bombing preparation. They were not a match.
The Court held that Dr. Diab was entitled, pursuant to s. 125(2) of the Courts of Justice Act (Ontario), to have the materials relied on by the Crown translated into English and ordered a new bail hearing.
Dr. Diab was held at the Ottawa Carleton Detention Centre. He had a bail hearing on November 20 and 21, 2008. Mr. LeFrançois of the IAG, who had assisted France with its mutual legal assistance requests and who is fluently bilingual, was assigned to Dr. Diab’s case. He acted for the Attorney General, on behalf of France, throughout the committal proceedings.
At the bail hearing, counsel for the Attorney General tendered a package of material prepared by France that contained the allegations against Diab. The materials were in French. Dr. Diab requested an English hearing. The Crown had prepared a summary of the materials in English, but the summary was not made an exhibit at the bail hearing.
On December 3, 2008, Dr. Diab was ordered detained. At the time of his initial bail hearing, Dr. Diab was represented by Mâitre René Duval. Me. Duval spoke to the media and told reporters that Dr. Diab was innocent and had been in Lebanon, studying at university, at the time of the bombing.Footnote 35 To the best of my knowledge, this theme was not pursued subsequently during the Canadian extradition process.
In December, Dr. Diab retained new counsel, Donald Bayne of Ottawa. Mr. Bayne contacted counsel at the IAG and requested that, because Dr. Diab was not fully fluent in the French language, all materials to be submitted to the Court in support of the extradition be translated into English.
The terms of the release were extremely restrictive. Among other things, the conditions of the bail required Dr. Diab, at his own considerable expense, to wear an electronic ankle bracelet until he was sent to France years later.
On February 24, 2009, Dr. Diab successfully applied to a single judge of the Court of Appeal for an order setting aside the decision made at the initial bail hearing. The Court held that Dr. Diab was entitled, pursuant to s. 125(2) of the Courts of Justice Act (Ontario), to have the materials relied on by the Crown translated into English and ordered a new bail hearing.
A second bail hearing was conducted before Justice Maranger of the Ontario Superior Court who ordered Dr. Diab’s release on March 31, 2009, after almost four months in Canadian custody. The Attorney General’s application to review the bail at the Court of Appeal was dismissed. Dr. Diab remained on bail until he was surrendered to France in 2014. The terms of the release were extremely restrictive. Among other things, the conditions of the bail required Dr. Diab, at his own considerable expense, to wear an electronic ankle bracelet until he was sent to France years later. There were no issues of non- compliance with the bail terms during the lengthy extradition proceedings.
In addition to being a Canadian citizen, Dr. Diab also retained his Lebanese citizenship. Neither Canada nor France has an extradition treaty with Lebanon.
Formal Request for Extradition
In accordance with the Canada-France extradition treaty, France had 45 days from Dr. Diab’s arrest on November 13, 2008 to make a formal request for extradition and to provide complete supporting materials.
Judge Trévidic consulted with both Messrs. Lemire and LeFrançois as he prepared the ROC that supported the formal request for extradition.
The mere stating of a belief without explaining the source of that belief – though sufficient in France – would not succeed at Canadian extradition proceedings.
Judge Trévidic drafted the material in the ROC and then Mr. Lemire reviewed it and made suggestions before it was officially provided to Canada. It was critical for Mr. Lemire that each of the judge’s “beliefs” included in the ROC be sourced to some piece of evidence. The mere stating of a belief without explaining the source of that belief – though sufficient in France – would not succeed at Canadian extradition proceedings.
The formal request for extradition and the supporting documents from France were received on December 22, 2008.
Authority to Proceed
The Authority to Proceed was issued by Tom Beveridge, General Counsel and Director of the IAG, on behalf of the Minister of Justice, on January 15, 2009.
5. The Record of the Case
On January 16, 2009, Dr. Diab’s counsel, Mr. Bayne, received a copy of the ROC prepared by the investigating judge, Marc Trévidic, the Vice-President of Investigation at the “Tribunal de Grande Instance de Paris” (Ordinary Court of First Instance of Paris) which, not surprisingly, was in French. Dr. Diab’s counsel requested that it be translated into English.
As indicated above, the ROC technique, introduced by the 1999 amendments to the Extradition Act, was meant to reduce or summarize the dense amount of original evidence that was necessary under the earlier regime. However, there were countervailing features in Dr. Diab’s case. This was a circumstantial case that had taken almost 30 years, with the investigation travelling over continents and partially through the covert world of intelligence agencies, to reach a request for extradition. The original investigation was intense and extensive. In addition, the methodology of an investigating judge in France, and their duty, is to put everything in the case dossier without filtering. An investigating judge’s file contains all information collected as well as the theory of the case as it developed over the years. In Dr. Diab’s case, that open-ended approach appears to have resulted in an ROC that was unusual and out of the norm.
Justice Maranger described it this way:
It was originally 72 pages of text with a 17-page list of exhibits referred to as “D. documents.” These included photographs, a copy of a passport, sketches, expert reports, police reports, maps, photographs and miscellaneous other documents. It was not easy to read as many of the pages were replete with seemingly disconnected information. The ROC, while providing some conventional evidence, also contained a great deal of argument, hypothesis, conjecture, and references to information received, without describing the source of that information or the circumstances upon which it was received.Footnote 36
The methodology of an investigating judge in France, and their duty, is to put everything is the case dossier without filtering.
In addition to the features noted by Justice Maranger, the ROC also included intelligence information, some of which was not sourced, and placed significant reliance on two expert opinions in the “soft science” of handwriting comparison analysis.
The unusual nature of the ROC in this matter is understandable given the nature of the investigation at issue and the different legal tradition in France. Nevertheless, what was included in the ROC (and what was left out), has given rise to a number of important questions. How involved should IAG counsel be in the production of the ROC? What approach should be taken in deciding what evidence to include? Should the ROC contain full copies of expert reports or only a summary of an expert’s opinion and findings? I explore these questions in Part C of my report.
The Translation of the Record of the Case
The ROC delivered to Canada was in French, which conformed with the terms of Canada’s extradition treaty with France and the fact that Canada is a bilingual country. When an extradition request is made from a non-English or non-French language country, the treaty agreements generally require that the ROC be provided in the original language and be accompanied by an English translation, which the requesting state has certified has the same value.
Dr. Diab exercised his right to have his extradition hearing conducted in English as he did not have the capacity to defend himself – that is, to understand and respond to the case against him – in French. The ROC was translated into English during the extradition hearing. The issue of translation proved to be thorny and led to delay. Initially, IAG counsel took the position that translation of the materials was not necessarily the responsibility of the Attorney General, but that position was properly abandoned. A translation of the ROC and its appendices was prepared by Government of Canada translation services and provided to Dr. Diab and his counsel. However, there were various issues, inaccuracies and mistakes in the English version. The presiding judge developed a protocol to resolve contentious phrases that had been translated.
The issue of translation proved to be thorny and led to delay.
Counsel for the Attorney General took the position that the “evidence” for the purpose of the extradition hearing was the French ROC, in the French language, delivered by the treaty nation. In response, defence counsel raised an issue as to whether the translated version of the ROC would be of equal evidentiary weight as the French document. From a “strictly technical perspective,” the presiding judge agreed with counsel for the Attorney General, but he also ruled that the translated English version would be the one “relied upon, used, argued, defended and cited when a decision is finally made, because this is an English proceeding”.Footnote 37
Justice Maranger further held that, if issues arose as to the accuracy of a specific translation, it would ultimately be for the Court to determine the meaning to be attributed to the word or phrase. In the unlikely event that the two versions of the ROC had to be juxtaposed one to the other, Justice Maranger held that the original French would be “considered stronger”.Footnote 38
The translation process was long and difficult. At least five different versions of the translated ROC were produced as additional corrections and revisions were made.
Translation issues arose again with regard to the crucial Bisotti Report. The most contentious area in dispute related to the appropriate English translation of Ms. Bisotti’s ultimate opinion on whether Dr. Diab was the author of the printing on the hotel registration card.
The disputed passage in question read:
“...il existe une très forte présomption à l'égard de M. Hassan DIAB comme auteur des mentions... Ce degré de présomption ne peut être chiffré.”
The English translation proposed by counsel for the Attorney General was “...there is a very strong presumption that Hassan DIAB is the author of the notes... The degree of presumption cannot be expressed numerically.”
The translation proposed by counsel for Dr. Diab was “…there is a very strong presumption with regard to Mr. Hassan DIAB as the author of the notes… The degree of presumption cannot be quantified.”
Each party obtained partial success. The extradition judge eventually ruled that the translation would read “there is a very strong presumption with regard to Mr. Hassan DIAB as the author of the notes… The degree of presumption cannot be expressed numerically.”
The litigation over translation issues was illustrative of the generally difficult nature of the committal proceedings. Submissions related to the translation of the Bisotti report, for example, took a full day – even though there were relatively few areas in dispute and despite the fact the specific language of Bisotti’s ultimate conclusion played little, if any, role in the extradition judge’s ultimate decision on committal. In Part C of this report, I make recommendations on approaches that might be taken to avoid protracted litigation in respect of translation issues.
6. Defence Efforts to Undermine the Reliability of Evidence in the ROC
The Handwriting Analyses
It was apparent from the beginning of the extradition proceedings that the handwriting analysis reports would be central to the defence efforts. On January 16, 2009, Mr. LeFrançois reported to his colleagues that the defence had requested full colour scans of the documents upon which the handwriting analyses were based. This was no surprise to counsel for the Attorney General who anticipated that the defence would attack the reliability of the French evidence as permitted by the leading case of Ferras.Footnote 39
Throughout February and March 2009, the ROC, including Ms. Barbe-Prot’s and Ms. Marganne’s reports, were translated into English and provided to Dr. Diab and his counsel.
On April 9, 2009, the parties appeared before Justice Maranger to discuss the translation issues described above and to make additional submissions related to the terms of Dr. Diab’s bail, which had been granted on March 31. On that date, Mr. Bayne told the judge he intended to adduce evidence challenging the reliability of the evidence in the ROC and requested six months to carry out the necessary investigations. After hearing defence counsel’s request, counsel for the Attorney General speculated in court that the defence might be attempting to adduce a competing handwriting analysis or something of that nature.
On May 27, 2009, counsel for the Attorney General proposed that dates be set for a hearing at which defence counsel would have to establish that the evidence he intended to call regarding, for example, the handwriting, was relevant to the extradition proceedings. In the words of Mr. LeFrançois, the defence was obligated to satisfy the committal judge that the proposed evidence was capable of wholly undermining the reliability of the evidence from France. This request was consistent with the leading case law that the role of the extradition judge was not to analyze competing inferences but to ascertain whether the requesting state had made out a prima facie case.
In response, defence counsel told the Court that he required more time to gather and perfect the proposed evidence.
Counsel continued to make submissions on this issue on May 28 and June 1, 2009. Counsel for the Attorney General requested that the earliest possible date be set for the extradition and suggested dates in either September or October 2009. Counsel for Dr. Diab suggested that the extradition hearing be set for January, 2010, and proposed that a preliminary evidentiary hearing be set for October 2009 at which time he would be in a position to provide a clear, concise summary of the evidence they intended to call to attempt to undermine the evidence in the ROC.
In the course of the submissions, Mr. Bayne informed the Court that he anticipated being able to adduce evidence confirming that it was impossible for a handwriting expert to properly conclude that the author of the test samples was the same author as the hotel registration card. He further explained that the proposed evidence would destroy the foundation of the expert reports.
The procedure followed by Justice Maranger was very much consistent with the approach later recommended by the Supreme Court.
In reporting to his colleagues about the day’s argument, Mr. LeFrançois correctly guessed, based on Mr. Bayne’s remarks, that the defence would adduce evidence that some or all the comparison samples used by the French experts were not written by Dr. Diab.
In a ruling given June 2, 2009, Justice Maranger acceded to the defence request. He found that denying counsel the opportunity to investigate and possibly present relevant evidence about the reliability of the information in the ROC would “fly in the face” of the Supreme Court of Canada’s statements in Ferras concerning a “meaningful judicial determination.” In the “preview” evidentiary hearing, the defence would need to provide a summary of the proposed evidence and demonstrate that – taken at its highest – it was reasonably capable of undermining the reliability of the evidence in the ROC.Footnote 40 The “preview” hearing was set for the week of October 26, 2009, and the extradition hearing was set to begin on January 4, 2010.
On this point, I note that at the time of Dr. Diab’s case, neither the presiding Judge nor counsel had the benefit of the Supreme Court’s guidance in M.M. v. United States of America on the practical issues that arise when the person sought seeks to adduce evidence for the purpose of undermining the reliability of the requesting state’s evidence. Nevertheless, the procedure followed by Justice Maranger was very much consistent with the approach later recommended by the Supreme Court.
In M.M., Justice Cromwell held that before an extradition judge embarks on hearing evidence from the person sought whose purpose is to challenge the reliability of the evidence of the requesting state, the judge may, and generally should, require an initial showing that the proposed evidence is realistically capable of satisfying the high standard that must be met in order to justify refusing committal on the basis of unreliability. This showing may be based on summaries or will-say statements or similar offers of proof. Only if the judge concludes that the proposed evidence, taken at its highest, is realistically capable of meeting this standard, should it be received.Footnote 41
The evidence fell into two categories: first, evidence relating to the issue of the handwriting analysis, and secondly, expert testimony with respect to the issue of using “intelligence” as evidence.
The defence counsel provided the proposed defence evidence – in the form of expert reports from multiple witnesses – to counsel for the Attorney General in mid-October 2009. On October 15, 2009, after receiving the information, Mr. LeFrançois wrote to Mr. Lemire, explained the contents of the defence handwriting reports, and expressed his view that this evidence was likely to be found admissible as potentially bearing on the question of whether one of the important pieces of the case from France was “manifestly unreliable”. Given the likelihood of the evidence being admitted, Mr. LeFrançois asked Mr. Lemire to consult with Judge Trévidic and see whether a new handwriting report could be prepared that did not rely on the documents alleged to be penned by Ms. Copty. In a follow-up exchange on October 19, after Mr. Lemire had spoken with Judge Trévidic, Mr. LeFrançois said he was convinced the defence evidence would be admitted.
In light of the timing of the receipt of the materials from the defence, on October 22, 2009, the Attorney General sought and was granted an adjournment of the “preview hearing” to determine the admissibility of the proposed defence evidence. That evidence consisted of reports from nine expert witnesses, which were eventually filed as exhibits at the admissibility hearing. The evidence fell into two categories: first, evidence relating to the issue of the handwriting analysis, and secondly, expert testimony with respect to the issue of using “intelligence” as evidence.
Dr. Diab’s counsel argued that, given this presumption, the person sought ought to be permitted to tender evidence on the possibility that the intelligence material was manifestly unreliable.
In relation to the handwriting analysis, Dr. Diab proposed to tender the testimony of four leading experts in the field. These experts’ reports included very harsh criticism of the French opinion evidence both with respect to methodology and the analysis in Ms. Barbe-Prot’s and Ms. Marganne’s reports. Most importantly, in the view of the extradition judge, the defence experts purported to undermine the factual foundation upon which the French reports were based. The defence experts concluded that some of the handwriting samples presumed to be Hassan Diab’s and used to compare to the hotel registration card were, in fact, someone else’s.
The Use of Intelligence Information
The second category of proposed defence evidence related to issues of using intelligence information as evidence. The ROC prepared by France included references to unsourced information provided to or made available to Judge Trévidic by French Police Services “Direction de la Surveillance du Térritoire” (DST), German Federal Police Services (BKA) and other unnamed sources. Some examples include:
- The report of the Crime Squad dated December 4, 1980. The report indicates: “From confidential information coming from German authorities, it was brought to our knowledge that the perpetrators of Rue Copernic were Palestinians who returned to Beirut immediately after the events”…“It was mentioned that the information contained in this note had been communicated to the DST by various intelligence or foreign security services.”
- “... BKA, for its part, provided the following information at a meeting in Paris with DST: The person who proceeded to buy the motorcycle on which the explosives were placed is a Lebanese national known in Beirut under the assumed name of AMER and whose real name is HASSAN.”
- “Several unfruitful investigations were conducted between 1984 and 1999. In 1999, however, the DST obtained very specific information on the very identities of the perpetrators of the attack, the role played by each of them in its preparation and commission, and their modus operandi. This information was stated in a report dated April 19, 1999.
As explained in Part A, pursuant to section 32(1)(a) of the Extradition Act, the contents of the ROC are presumptively reliable. Dr. Diab’s counsel argued that, given this presumption, the person sought ought to be permitted to tender evidence on the possibility that the intelligence material was manifestly unreliable.
Defence counsel proposed five different expert witnesses who would testify on the issue of “intelligence” and its unreliability as evidence in the criminal law context. The matter was adjourned to November 30, 2009, for argument.
7. IAG Communication with France
Between the filing of the defence experts reports and the argument on admissibility, counsel for the Attorney General of Canada wrote to France to provide an update on the proceedings. Although Mr. LeFrançois ultimately signed the letter – which was prepared at Judge Trévidic’s request – Mr. Lemire drafted it.
He emphasized the importance of the handwriting evidence for a successful extradition and, in this context, asked whether a further handwriting analysis could be undertaken in France.
When Mr. Lemire first told Judge Trévidic about the defence expert reports and Mr. LeFrançois’s suggestion that France consider obtaining a new report, Judge Trévidic was initially reluctant. He was concerned about possible implications for the case in France and felt that any issues related to the reliability of the two original reports was a matter to be addressed in France, not debated in Canada. After further consideration and reading the defence reports, Judge Trévidic agreed there could be an issue. He conveyed to Mr. Lemire that, to justify his request and get approval for a new report, he would need a formal request from the IAG in Canada.
The November 21, 2009 Letter
In a letter dated November 21, 2009, Mr. LeFrançois wrote that, if admitted, the defence handwriting analysis evidence would jeopardize the reliability of one of the only elements of direct evidence in the ROC. He emphasized the importance of the handwriting evidence for a successful extradition and, in this context, asked whether a further handwriting analysis could be undertaken in France without recourse to the tainted comparison samples.
The letter also made reference to France’s request that Canada transmit Dr. Diab’s distal fingerprints (prints left by the ends of fingers) for comparison with fingerprints found on Panadriyu’s arrest card.
France wanted access to Dr. Diab's distal fingerprints to compare them to the prints on the arrest record. A positive match would provide a nearly conclusive link between Dr. Diab and the fictitious Panadriyu.
In April 2009, the original arrest form related to Panadriyu’s theft of pliers was located in the French archives and tested for fingerprints. Tests done in France showed a match between some of the prints on the arrest form and one of the arresting police officers. The remaining prints on the record could not be identified. France wanted access to Dr. Diab’s distal fingerprints to compare them to the prints on the arrest record. A positive match would provide a nearly conclusive link between Dr. Diab and the fictitious Panadriyu.
Between April and October 2009, Judge Trévidic consulted with Mr. Lemire and Mr. LeFrançois as to how best to obtain Dr. Diab’s prints for comparison. Mr. LeFrançois, in turn, consulted with the RCMP to see whether they could obtain the prints surreptitiously, but that option was either not pursued or not successful. Ultimately, after receiving advice from IAG counsel, France made a formal request to Canada on October 12, 2009, to obtain Dr. Diab’s distal fingerprints.
Defence counsel had succeeded in presenting a strong position that the handwriting evidence from the two French handwriting experts was manifestly unreliable.
In his November 21, 2009 letter, counsel for the Attorney General explained that the defence was very likely to challenge the issuing of an order to send Dr. Diab’s distal prints to France. Sending the prints found on the arrest record to Canada might expedite the process. Accordingly, he suggested France send a clear copy of the prints detected in France to Canada so the comparison analysis could be performed here. Counsel advised that the results of the comparison could be extremely persuasive and perhaps even conclusive for the extradition hearing.
Although it is not uncommon for IAG counsel to give a requesting state advice about how to bolster its case, such advice is typically given prior to filing the ROC rather than in the midst of committal proceedings and in response to defence evidence that tends to undermine the reliability of the requesting state’s certified evidence.
It is clear that defence counsel had succeeded in presenting a strong position that the handwriting evidence from the two French handwriting experts was manifestly unreliable. As noted above, that is a very high threshold. Counsel for the Attorney General were in somewhat uncharted terrain. Although it is not uncommon for IAG counsel to give a requesting state advice about how to bolster its case, such advice is typically given prior to filing the ROC rather than in the midst of committal proceedings and in response to defence evidence that tends to undermine the reliability of the requesting state’s certified evidence.
The error by the two experts in relying on incorrect exemplars was significant and, from a practical point of view, undermined confidence in their conclusions. There was discussion in the IAG ranks about whether that was entirely correct and whether there was a way forward that could minimize the damage. Theoretically, this could be accomplished by illustrating that the impugned exemplars formed a very small part of the sample size and that the issue went to weight only and not threshold reliability. After discussion, the IAG determined that it would be safer to seek out an entirely new handwriting opinion not dependent on tainted samples.
Mr. LeFrançois was criticized for “directing” the French to get another report as the case for extradition was “falling apart”. I find this characterization of the letter to be flawed and the allegations against Mr. LeFrançois to be unfair and undeserved.
After Dr. Diab’s return to Canada in 2018, the media obtained the November 21, 2009, letter and it garnered significant public attention. Mr. LeFrançois was criticized for “directing” the French to get another report as the case for extradition was “falling apart”. I find this characterization of the letter to be flawed and the allegations against Mr. LeFrançois to be unfair and undeserved. The job of counsel for the Attorney General in extradition proceedings is to lend their skill and expertise to the carriage of the case and to provide ongoing advice to the requesting state. I discuss the nature and level of advice and assistance provided to France in this case in Part C of this report.
8. Decision on the Admissibility of Defence Evidence
The argument on the defence application to adduce evidence took place over five days beginning on November 30, 2009.
Justice Maranger held that the defence handwriting evidence, if accepted, could lead an extradition court to conclude that the French experts’ reports were manifestly unreliable.
Counsel for the Attorney General opposed the admission of any of the evidence. The Attorney General argued, in respect of the defence handwriting expert evidence, that it merely offered a competing opinion or inference from those presented by the French experts on the issue of who filled out the hotel registration card. The Attorney General also opposed the introduction of any of the expert evidence relating to the issue of the use of “intelligence” in a criminal proceeding.
The committal judge allowed the defence application. Justice Maranger held that the defence handwriting evidence, if accepted, could lead an extradition court to conclude that the French experts’ reports were manifestly unreliable or defective and should be rejected:
This is especially so if the Court were to find that the reports from France are based on an incorrect factual foundation. Although I cannot conclude at this stage that the French reports would be completely rejected at a hearing, the potential for that conclusion in the face of the proposed evidence is a reality.Footnote 42
Among the concerns raised by the proposed defence evidence about the reliability of intelligence information was the possibility that it could be torture-derived and, therefore, tainted.
The committal judge also held that Dr. Diab ought to be allowed to present evidence on the narrow issue of the use of “intelligence” as evidence because of “the possibility that this type of information could be manifestly unreliable”. Among the concerns raised by the proposed defence evidence about the reliability of intelligence information was the possibility that it could be torture-derived and, therefore, tainted. The Court concluded that it did not require five witnesses to make a determination about the reliability of the intelligence information and found the testimony of Professor Kent Roach on this issue to be the most focused.
Justice Maranger gave a brief oral ruling on December 11, 2009, permitting counsel for the person sought to file the four handwriting analysis reports and call two of those experts to give viva voce evidence.
Counsel for the Attorney General would be permitted to cross-examine all four witnesses if it wished. Justice Maranger further ruled that the defence could call Professor Roach as an expert on the issue of using intelligence as evidence.
9. Efforts by France to Obtain a New Handwriting Report and Updates to the Court
On December 11, 2009, IAG counsel learned that Judge Trévidic had commissioned a new handwriting report.
The Attorney General’s Adjournment Application
The Attorney General argued that France ought to be permitted an opportunity to consider the defence evidence and determine whether it wished to provide further evidence.
One week later, on December 18, 2009, counsel for the Attorney General, on behalf of France, brought an application to adjourn the extradition proceedings, which had been scheduled to begin January 4, 2010. In support of its adjournment application, counsel for the Attorney General argued that France ought to be permitted an opportunity to consider the defence evidence and determine whether it wished to provide further evidence, through a Supplemental Record of the Case – as permitted by section 32(5) of the Act. Citing section 4 of the Act, counsel further argued that if an adjournment was not granted and Dr. Diab was ultimately discharged, nothing would prevent France reinstituting the extradition proceedings from the beginning, if the requesting state later came to possess new and additional evidence.Footnote 43
Mr. LeFrançois noted that the Attorney General had first seen the defence expert reports in October. In his argument for an adjournment, Mr. LeFrançois noted that the Attorney General opposed the admission of the defence evidence and that the admissibility decision was not a forgone conclusion. Privately he had, of course, expressed concern that the defence handwriting evidence would be admitted, and that a new handwriting report from France needed to be considered.
Justice Maranger granted the adjournment application. The matter was adjourned to February 8, 2010, for an update and potentially to set dates for the extradition hearing.
Discussions between Mr. LeFrançois and Mr. Bayne continued but Mr. LeFrançois took the position that he was not prepared to discuss, even in general terms what, if any, new evidence the French might be filing. To be clear, the French were actively pursuing other avenues including the distal prints and considering interviews unrelated to the prints and handwriting to respond to the presiding Judge’s rulings, particularly in relation to the two initial handwriting reports.
Results of the Distal Prints Comparison
On January 13, 2010, Mr. LeFrançois reported to Jacques Lemire and Janet Henchey, the head of the IAG, the results of the distal prints comparison. Six impressions taken from the arrest record were submitted to the RCMP for comparison. Dr. Diab was conclusively eliminated as being the source of four of the six prints. The comparison of the remaining two prints was inconclusive because of the quality of distal impressions obtained from Dr. Diab.
Mr. LeFrançois took the view that, first, the results of the comparison were neither inculpatory nor exculpatory and, second, that he was not required to disclose the results.
Mr. LeFrançois’s immediate reaction was that they should refrain from sharing the information including with France. However, he knew the French would eventually want the results and, indeed, within a matter of days, by January 22, 2010, Judge Trévidic was made aware of the results.
Given the results were equivocal, Mr. LeFrançois did not believe the analysis would assist in advancing the extradition request. In addition, Mr. LeFrançois did not want to disclose the results of the comparison to Mr. Bayne prior to the committal hearing. He was concerned that Mr. Bayne would attempt to call defence evidence to show that none of the prints on the arrest record belonged to Dr. Diab, which would make a splash, even if such evidence would not assist in resisting extradition.
Mr. LeFrançois took the view that, first, the results of the comparison were neither inculpatory nor exculpatory and, second, that he was not required to disclose the results – given they were not being relied upon in seeking Dr. Diab’s extradition. Mr. LeFrançois was not inclined to provide more disclosure than the law requires where such disclosure could prolong the proceedings unnecessarily and potentially erode gains made in the jurisprudence related to the scope of disclosure obligations in the context of extradition.
Supervising IAG counsel agreed there was no obligation to disclose the results of the distal fingerprint analysis to counsel for Dr. Diab. IAG counsel discussed the ramifications of Mr. Bayne discovering the results after the committal hearing and recognized that it was likely to cause significant upset.
On January 27, 2010, Mr. LeFrançois, Jeffrey Johnston, Matthew Williams and a paralegal met to get Mr. Johnston up to speed. Mr. Johnston, another senior counsel within the IAG, had recently been assigned to Dr. Diab’s case as the previously assigned IAG counsel, Mr. Williams, was taking a paternity leave. Mr. LeFrançois advised that fingerprint results were not being sent to France at that time and had not been disclosed to the defence. He also reported that the French would be producing a new handwriting report but it would not be ready by February 8th.
The New Handwriting Analysis
On February 5, 2010, the IAG received the curriculum vitae of the proposed new handwriting comparison expert, Anne Bisotti.
Until Ms. Bisotti’s report was finalized, Mr. LeFrançois could not say whether France would be relying on additional evidence.
In court on February 8, 2010, Mr. LeFrançois indicated he was in no better position than in December to advise whether or not additional evidence would be called. A three-week period was set aside in June as a target date for the extradition hearing. The matter was adjourned to March 29, 2010, for a further update.
On March 19, 2010, Ms. Bisotti was given access to original handwriting samples from Dr. Diab which had been forwarded to the US Embassy in Paris. French authorities told Mr. LeFrançois the report might be ready for April.
When he appeared in Court on March 29, 2010, Mr. LeFrançois reported that “the status has not changed between the last appearance and today”. Justice Maranger expressed some concern that counsel for the Attorney General was not able to provide any further information and asked Mr. LeFrançois, as an officer of the court, to elaborate. Justice Maranger did not want to be in a position where, on the eve of the June dates set aside for the continued extradition hearing, new evidence would be introduced that would require a further adjournment. Mr. LeFrançois reiterated that he was not able to describe the nature of the evidence, if any, that might be generated but did say that there was nothing conceivable that could make the June dates unworkable.
On that basis, the matter was adjourned to April 13, 2010 to deal with translation issues and then to June 14, 2010 to start the extradition hearing proper.
In my view, Mr. LeFrançois was placed in a difficult position. The judge, understandably, wanted information about how the extradition proceedings were likely to unfold. Mr. LeFrançois was not in a position to provide assistance on that point. Until Ms. Bisotti’s report was finalized, Mr. LeFrançois could not say whether France would be relying on additional evidence. I discuss my assessment of counsel for the Attorney General’s interactions with the Court on these reporting dates further below in Part C of this report.
The Findings of the Bisotti Report
Ms. Bisotti stated that there is a “very strong presumption with regard to Mr. Hassan Diab as the author” of the printing contained on a hotel guest registration card.
On May 3, 2010, Mr. LeFrançois received word from Judge Trévidic that the report regarding Diab’s authorship of the printed words on the hotel registration was positive. On the afternoon of Friday, May 7, 2010, Mr. LeFrançois received a copy of the Bisotti report and, on the following Monday morning, May 10, 2010, Mr. LeFrançois advised Mr. Bayne and Justice Maranger of the Bisotti report at a previously scheduled in-chambers meeting.
In her report, Ms. Bisotti stated that there is a “very strong presumption with regard to Mr. Hassan Diab as the author” of the printing contained on a hotel guest registration card at the Celtic Hotel situated near the area of the bombing in Paris in 1980.Footnote 44
On May 17, 2010, counsel for the Attorney General formally filed the original French version of the Bisotti report in a Supplementary Record of the Case and withdrew the two earlier handwriting reports. All parties agreed that the June dates, set aside for the committal hearing, had to be cancelled.
On June 4, 2010, the Supplementary ROC and English translation of the Bisotti report were provided to Mr. Bayne.
On June 9, 2010, Mr. Bayne confirmed he would bring an abuse of process application seeking to have the Bisotti report excluded from the extradition hearing.
10. The Abuse of Process Applications
On August 31, 2010, a hearing of Dr. Diab’s application to exclude the Bisotti report was held and, on September 1, 2010, the judge made a ruling dismissing the defence application. Justice Maranger held that:
[W]hile I can express a degree of frustration at the timing of the presentation of a supplemental record, and at the failure to advise the court of the possibility of new handwriting expert evidence, I cannot find that there is any evidence that could support a finding of an abuse of process.Footnote 45
Counsel for Dr. Diab argued that France had, on numerous specified occasions, misrepresented the contents of the ROC to either deliberately manipulate the material to create a falsely inculpatory impression.
In reaching this conclusion, Justice Maranger noted that: France was entitled, pursuant to the Extradition Act, to file a Supplementary Record of the Case and to withdraw reliance on evidence contained in the original ROC; France was not required to withdraw reliance on the original handwriting reports simply because the Court had found defence evidence relating to their reliability to be admissible at the extradition hearing; and, finally, the allegations, taken at their highest, did not amount to a complete failure of due diligence on France’s part.
In October 2010, a second abuse of process application was filed, this time seeking a stay of the proceedings. Counsel for Dr. Diab argued that France had, on numerous specified occasions, misrepresented the contents of the ROC to either deliberately manipulate the material to create a falsely inculpatory impression or, at a minimum, acted without requisite due diligence in the presentation of its evidence. The abuse application included allegations related to: the intelligence information in the ROC; the non-disclosure of the fingerprint analysis; a lack of diligence in obtaining the Bisotti report; and counsel for the Attorney General displaying a lack of candour with the Court.
The second abuse application was argued between November 8 to 23, 2010. Justice Maranger deferred his ruling on the application to the end of the extradition proceedings. Ultimately, the application for abuse of process was again dismissed in the final ruling, which resulted in a committal for extradition.
11. Admissibility of Defence Experts Challenging the Reliability of the Bisotti Report
From November 24 to December 3, 2010, the Court heard argument on the admissibility of evidence from three defence handwriting experts. The reports of these witnesses were filed as exhibits during the admissibility hearing. These experts variously described the Bisotti report and its conclusions as “patently unreliable”, “wholly unreliable”, and “fatally flawed and lacking in objectivity reliability and accuracy”.
On December 6, 2010, Justice Maranger found the defence evidence admissible on the basis that the expert evidence could lead the Court to the conclusion that the Bisotti report was manifestly unreliable – not that it had or necessarily would.
Justice Maranger found the defence evidence admissible on the basis that the expert evidence could lead the Court to the conclusion that the Bisotti report was manifestly unreliable.
Counsel for the Attorney General contemplated attempting to obtain further evidence from France, including, potentially, a response from Ms. Bisotti to the defence critiques. This course of action was ultimately not pursued. Mr. LeFrançois also reached out to a Canadian handwriting expert to assist in preparing for the cross-examination of the defence experts but, a day later, decided not to follow through on that approach either.
In email exchanges with his colleagues at IAG, Mr. LeFrançois expressed the view that the goal of the cross-examination of the defence witnesses would be to establish that there is significant latitude left to the professional judgment of experts in the field of handwriting comparison. The approach of counsel for the Attorney General was to show that the defence experts were simply offering a competing opinion rather than completely undermining the reliability of Ms. Bisotti’s report. Counsel for the Attorney General was aware of the need not to go so far in cross-examining the defence experts so as to “fatally injure” the soft science that is handwriting analysis, and thus open the door to Mr. Bayne arguing that the committal judge should not place any weight on this aspect of the Supplementary ROC.
12. The Committal Hearing
Three defence experts, Brian Lindblom, Paul Osborn and Robert Radley, testified in chief and were cross-examined by Mr. LeFrançois on December 13-17 and 20-22, 2010, and on January 4-7, 2011.
Mr. Lindblom criticized the report prepared by Ms. Bisotti as being “extremely confusing” and described certain areas of the report as “incomprehensible”.Footnote 46 He testified that Ms. Bisotti’s approach deviated significantly from established methodologies and that she failed to approach “her assignment in an objective manner”.Footnote 47 Mr. Osborn and Mr. Radley testified similarly.
Arguments on whether the Bisotti report should be excluded as manifestly unreliable were heard over three days on February 9, 10 and 11, 2011.
Bisotti Report is Flawed but not Manifestly Unreliable
The Court held that, in the context of an extradition, very strong criticism, coupled with competing inferences from other experts, does not render another expert’s opinion manifestly unreliable.
On February 18, 2011, Justice Maranger ruled, in brief oral reasons, that the defence had not established that Ms. Bisotti’s report was manifestly unreliable and informed counsel that it would not be excluded. Justice Maranger’s full reasons on this issue were included in his final decision on committal. In that ruling, Justice Maranger wrote:
The evidence presented on behalf of the person sought has largely served to substantially undermine the French report; it has been shown to be evidence that is susceptible to a great deal of criticism and attack.
I found the French expert report convoluted, very confusing, with conclusions that are suspect. Despite this view, I cannot say that it is evidence that should be completely rejected as “manifestly unreliable”.Footnote 48
The Court held that, in the context of an extradition, very strong criticism, coupled with competing inferences from other experts, does not render another expert’s opinion manifestly unreliable. In relation to the criticisms of the methodology employed by Ms. Bisotti, Justice Maranger noted that it was possible that in France there might be a different approach or methodology in relation to handwriting comparison analysis.Footnote 49
13. Charter Application for Exclusion of Bisotti Report
He submitted that Dr. Diab would not be able to effectively challenge the ultimate reliability of the Bisotti report because of trial procedures in France.
Following Justice Maranger’s ruling that the Bisotti report would not be excluded on the basis that it was manifestly unreliable, counsel for Dr. Diab filed an application to have it excluded pursuant to s. 24(2) of the Charter. That application was heard on February 28, 2011. Mr. Bayne argued that there remained an “avenue through which evidence may be excluded […] for reasons of fairness” based in part on Justice Maranger’s finding that the report was suspect. He submitted that Dr. Diab would not be able to effectively challenge the ultimate reliability of the Bisotti report because of trial procedures in France. Justice Maranger dismissed the application on March 1, 2011. He held that he had no jurisdiction to examine the fairness or unfairness of France’s trial procedures but noted that, if committal was ordered, these issues could be raised at the ministerial phase of the extradition proceedings.Footnote 50
14. Decision on Committal
The ROC in this case was unconventional.
As noted above, the ROC in this case was unconventional. It contained argument, analysis and references to information that did not identify the source of the information or the circumstances in which it was provided. This information was referred to by counsel for Dr. Diab as “intelligence”. The Court allowed Professor Kent Roach to testify as an expert on the dangers associated with using “intelligence” as evidence.
Ultimately, the issue of how intelligence evidence could be used and whether it was manifestly unreliable was not argued because counsel for the Attorney General opted not to rely on those parts of the ROC that could be categorized as “intelligence”, argument, speculation and analysis. The decision not to rely on this information was made late in the proceedings, just prior to the final arguments on committal. Counsel for the Attorney General determined that, after the defence failed to have the Bisotti report excluded, it would not rely on the “intelligence” information in the ROC.Footnote 51
Counsel for the Attorney General determined that, after the defence failed to have the Bisotti report excluded, it would not rely on the “intelligence” information in the ROC.
Final arguments on committal were heard between March 7 and 9, 2011. Justice Maranger reserved his decision on committal. Before the decision was released, Mr. Bayne brought an application to adjourn the decision date to allow him to perfect an application to reopen the proceedings and tender new evidence specifically as to the methodology used in France for handwriting comparison. The proposed new evidence would go to the issue of whether the Bisotti report should be excluded as “manifestly unreliable”.
On May 26, 2011, Justice Maranger denied the application and held that the proposed new evidence would not change his earlier ruling in relation to the reliability of the Bisotti report.Footnote 52
On June 6, 2011, Justice Maranger released his reasons dismissing the second abuse of process application and ordering Dr. Diab’s committal for extradition to France. In his thorough and detailed decision, Justice Maranger described the protracted nature of the extradition proceedings, the evidence contained in the original and supplementary ROCs, and the parties’ arguments.
In relation to the abuse of process argument, Justice Maranger rejected the defence argument that a requesting state has a duty to put forward all information, whether inculpatory or exculpatory, in the ROC. The Judge accepted the proposition, advanced by counsel for the Attorney General, that in an extradition case is there is “no responsibility upon a requesting state to provide full disclosure of all of its evidence”.Footnote 53
The central issue in dispute at committal was whether the ROC, as supplemented, disclosed evidence of a prima facie case identifying Hassan Diab as a party who engaged in the alleged conduct specified in the request for extradition. It was conceded that the evidence in the ROC established a sufficient connection between the person who went by the alias Panadriyu and the bombing. What remained in dispute was whether the ROC contained sufficient evidence to suggest that Hassan Diab was Panadriyu.
The importance of Ms. Bisotti’s report to the case for committal was evident to all involved.
To support its argument that a prima facie case had been made out, counsel for the Attorney General pointed to five pieces of evidence: Hassan Diab’s 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 PFLP; eyewitness descriptions of Panadriyu; composite sketches of Panadriyu and their purported similarity to contemporaneous photographs of Hassan Diab; and Ms. Bisotti’s handwriting comparison analysis.
The importance of Ms. Bisotti’s report to the case for committal was evident to all involved. Counsel for the Attorney General was aware that if the report had been found to be manifestly unreliable and excluded from consideration, the case for committal would have been demonstrably weaker. Indeed, in his submissions to the Court, Mr. Johnston referred to the report as a “smoking gun”. Counsel for the Attorney General did not overestimate the importance of the report.
Justice Maranger concluded that the first four components of the evidence, even taken together, would not be enough to justify committing Dr. Diab to trial in France. The evidence that tipped the scales in favour of committal was the handwriting comparison analysis.
Justice Maranger concluded that the Bisotti report was “convoluted, very confusing, with conclusions that are suspect” but not manifestly unreliable:
The fact that I was allowed to scrutinize the report to the degree that I did, together with the lack of other cogent evidence in the ROC, allows me to say that the case presented by the Republic of France against Mr. Diab is a weak case; the prospects of conviction in the context of a fair trial, seem unlikely. However, it matters not that I hold this view. The law is clear that in such circumstances a committal order is mandated.Footnote 54
At the end of his decision, Justice Maranger commented on the length and bitterly contested nature of the extradition proceedings.
The judicial phase of the extradition proceedings took approximately 90 days of court time, making it one of the longest extradition hearings in Canadian history.
The judicial phase of the extradition proceedings took approximately 90 days of court time, making it one of the longest extradition hearings in Canadian history. Counsel on both sides demonstrated zealous advocacy and represented their respective clients with skill and passion. Indeed, after the committal decision was released, superiors at the DOJ were understandably complimentary of the efforts of counsel in seeing the proceedings through to a committal decision. At the same time, as Justice Maranger noted, the heated exchanges between counsel and “appeals to emotion” at times served to distract from the task at hand. Justice Maranger managed these complex and challenging proceedings deftly and with incredible skill, dedication and patience. In Part C, I raise the possibility of introducing formal case management powers for judges hearing extradition cases to provide them with additional tools for focusing these proceedings and managing the expectations of all involved.
15. Submissions to the Minister and Decision to Order Surrender
Mr. Bayne argued that surrender would be unjust and oppressive.
On August 24, 2011, Mr. Bayne made written submissions to the then-Minister of Justice, the Honourable Rob Nicholson, opposing Dr. Diab’s surrender to France. Mr. Bayne argued that surrender would be unjust and oppressive and that Dr. Diab’s Charter rights would be infringed by surrender to face trial in France. More specifically, Bayne argued that the French proceedings would be based – at least in part – on unsourced and unknown intelligence reports and that such intelligence may have been obtained through torture. Mr. Bayne further argued that intelligence reports of the kind contained in the ROC would be impervious to challenge at a trial in France. Finally, Mr. Bayne argued that, at a trial in France, Dr. Diab would be unable to meaningfully challenge the French handwriting reports – which Justice Maranger found to be suspect.
Mr. Bayne argued that, in France, defence evidence, including expert evidence, is not given the same weight as that given to expert opinions included in the case dossier prepared by the investigating judge. In making these submissions, Mr. Bayne relied on reports from Stéphane Bonifassi, a French lawyer, and Professor Jacqueline Hodgson, who examined the French legal system in an independent report prepared for the United Kingdom Home Office.
Following receipt of Mr. Bayne’s initial submissions to the Minister, Jacqueline Palumbo, counsel at IAG, summarized those submissions and forwarded the summary and original submissions to the Minister. Ms. Palumbo’s role was to advise the Minister and provide him with legal advice on issues relating to his surrender decision. A copy of the summary was provided to Mr. Bayne.
On receipt of the summary, Mr. Bayne wrote to Ms. Palumbo and complained that the summary did not fairly, fully or accurately describe the submissions made on behalf of Dr. Diab. Mr. Bayne’s letter was provided to the Minister. All submissions received by Mr. Bayne from that point on were forwarded to the Minister without a summary. I understand that this is now standard practice. Owing at least in part to Mr. Bayne’s objections in this case, advisory counsel at IAG no longer summarize for the Minister the submissions made on behalf of the person sought. Instead the submissions are sent to the Minister for consideration without a summary.
In response to Mr. Bayne’s submissions, Ms. Palumbo also sought information from France on the use of “intelligence” in French trials and on the ability of accused individuals in France to challenge evidence in the case dossier. On November 16, 2011, counsel provided a memorandum to the Minister based on information received from the French authorities about the French legal system and the rights available to the accused at various stages of the investigative and trial process. This memorandum made clear that the investigation of Dr. Diab was ongoing in France and that no decision had yet been made as to whether Dr. Diab would face a trial in France. According to the memorandum, such a decision could not be made until Dr. Diab was in France and had been given an opportunity to provide a statement.
Owing at least in part to Mr. Bayne’s objections in this case, advisory counsel at IAG no longer summarize for the Minister the submissions made on behalf of the person sought.
Mr. Bayne was given a copy of the memorandum about the French legal system. In response to this information, Mr. Bayne made further submissions to the Minister, dated January 26, 2012, in which he argued that – given that the Extradition Act permits extradition for the purposes of prosecution, not investigation – the Minister had no jurisdiction to surrender Dr. Diab for extradition because the French were not yet trial-ready. Mr. Bayne, again relying on opinion evidence from Mr. Bonfassi and Professor Hodgson, argued that Dr. Diab, if surrendered, would be detained in France for an “extended” period pending the completion of the investigation and a decision whether to discharge Dr. Diab or refer the case to trial. Mr. Bonifassi estimated that this process would take a year or more.
On March 16, 2012, Ms. Palumbo provided the Minister with a lengthy legal memorandum in relation to the Minister’s decision in respect of surrender. This is the ordinary process by which the Minister makes a decision. Counsel prepares a detailed memorandum for the Minister providing a review of the issues raised by the person sought, a response to the issues raised, and a legal opinion as to whether surrender should be ordered and whether any assurances should be sought. This is legal advice and, therefore, a copy of the memorandum is not provided to the person sought.
Having considered the submissions made on Dr. Diab’s behalf, the Minister concluded that Dr. Diab would receive a fair trial in France.
The Minister reviews the materials filed on behalf of the person sought and makes a decision informed by the advice from department counsel and staff within his or her office. Once the Minister makes a decision, the reasons for the decision are typically drafted by the IAG counsel, who has been supporting the Minister, for review and approval by the Minister. The reasons are then sent to the person sought. The reasons for surrender by the Minister are generally not publicly accessible and little information about the nature of the Minister’s decision-making process is available. In Part C of this report, I include some thoughts on the desirability of greater transparency in this aspect of extradition proceedings.
On April 4, 2012, the Minister ordered Dr. Diab’s unconditional surrender to France. Having considered the submissions made on Dr. Diab’s behalf, the Minister concluded that Dr. Diab would receive a fair trial in France and that his surrender would not be contrary to the Extradition Act, the Treaty or the Charter.
16. Appeal of Committal and Judicial Review Application
Dr. Diab appealed both Justice Maranger’s decision to order committal for extradition and the Minister’s surrender order. Dr. Diab was represented on appeal by Mr. Bayne, joined by other prominent co-counsel.
Amnesty International, the Canadian Civil Liberties Association and the British Columbia Civil Liberties Association all intervened in the case.
Amnesty International, the Canadian Civil Liberties Association and the British Columbia Civil Liberties Association all intervened in the case. The CCLA supported Dr. Diab’s argument that Justice Maranger’s interpretation of Ferras and the test for manifest unreliability led to incorrect and unconstitutional results. Amnesty International argued that the Minister must refuse extradition when there is a real risk that evidence obtained by torture would be admitted at the foreign trial. The BCCLA submitted that, if the person sought can establish a “plausible connection” between the evidence against him and the use of torture, the Minister must either rebut that connection based on specific information or else satisfy themselves that the evidence will not be used against the person sought.
On May 15, 2014, after a lengthy hearing and after reserving its decision, the Court of Appeal dismissed the appeal and judicial review giving thorough reasons.Footnote 55 The Court held that Justice Maranger correctly applied the test for committal. Having concluded that the Bisotti report was not manifestly unreliable, Justice Maranger did not err by not further analyzing the evidence to decide if it would be dangerous or unsafe to convict on all of the evidence in the record of the case.
The Court held that Justice Maranger correctly applied the test for committal.
In relation to the ministerial decision, the Court of Appeal found that the Minister had reasonably concluded that French authorities had taken steps that were consistent with the commencement of a prosecution against Dr. Diab. The Court held that section 3(1) of the Extradition Act, requiring that extradition be reserved for the “purpose of prosecuting the person” is satisfied where a process is initiated that could lead to trial and if the person sought is more than a mere suspect. A trial of that person need not be inevitable. The Court of Appeal concluded that: “[t]he record in this case clearly demonstrates that [Dr. Diab], if extradited, will not simply ‘languish in prison’”.Footnote 56
The Court further held that it was “beyond debate that torture-derived evidence may not be used in legal proceedings and cannot be relied upon by a state seeking extradition or being asked to extradite”.Footnote 57 Although the Minister’s decision did not expressly state that he was satisfied that torture-derived evidence would not be used, it was apparent to the Court of Appeal that he was indeed so satisfied, and that the surrender of Dr. Diab “would not shock the conscience of Canadians”.Footnote 58
Dr. Diab sought leave to appeal to the Supreme Court of Canada raising two principal issues. The first related to the role of the extradition judge in assessing the sufficiency of evidence for committal: is the extradition judge’s role restricted to deciding whether there is some evidence on each essential element of the offence that is not manifestly unreliable, as the Court of Appeal decided? Or is the task of the extradition judge broader? Is the judge required to review all the evidence to determine whether there is a plausible case on which a reasonable, properly instructed jury, could safely convict? The second issue related to whether surrender to face a criminal trial in which intelligence reports would be used as evidence violates the s. 7 rights of the person sought.
Dr. Diab’s application seeking leave to file an appeal with the Supreme Court of Canada was dismissed on November 13, 2014. The next day, Dr. Diab was extradited to France where he would remain until January of 2018.
17. The Proceedings in France
Following his extradition, Dr. Diab was detained at Fleury-Merogis prison (near Paris) after he unsuccessfully applied for bail. The investigating magistrate met with Dr. Diab on the day of his arrival in France and Dr. Diab was formally placed under investigation (“mis en examen”).Footnote 59 He chose not to speak with the judge at that time.
If the person under investigation chooses to speak with the magistrate and makes reference to exculpatory evidence, the magistrate is required to investigate the defence evidence.
Once an individual is formally placed under investigation, the French criminal process generally proceeds as follows. During the investigative period, the magistrate meets with witnesses and reviews evidence. The person under investigation is given access to the magistrate’s investigative file. If the person under investigation chooses to speak with the magistrate and makes reference to exculpatory evidence, the magistrate is required to investigate the defence evidence. Ultimately, after considering all of the prosecution evidence, any available defence evidence and the submissions of the prosecution and defence, the investigating magistrate will assess the evidence and reach a conclusion on whether to send the case to trial or discharge the person under investigation. The decision on whether to discharge or refer the matter to trial is subject to appeal.
The proceedings conducted by the investigating magistrate are governed by the “secret de l’instruction”; a rule that maintains complete confidentiality of the proceedings. The magistrate provides full access to the contents of the investigative file to both the prosecution and the person under investigation, but the public does not have access to any of the evidence or the decisions at this stage of the proceedings.
For this reason, little information is available about the specifics of Dr. Diab’s detention in France, the investigation conducted following his extradition, the decision to discharge him rather than refer the matter to trial, or the grounds of appeal. None of the French judicial decisions are publicly available. What is known and summarized below is largely taken from snippets of decisions that have appeared in Canadian media reports.
Little information is available about the specifics of Dr. Diab’s detention in France, the investigation conducted following his extradition, the decision to discharge him …
Dr. Diab’s supporters started a website that offered periodic updates on his status.Footnote 60 On April 27, 2015, the site reported that Dr. Diab could be expected to remain in prison for up to two years while awaiting a decision about whether his case would be brought for trial. On the same day, the site reported that Dr. Diab claimed that he was not in France at the time of the bombing.
A year after he was extradited, Dr. Diab remained in custody. An editorial published in the Globe & Mail on November 9, 2015, reported that Dr. Diab could remain in custody for a further two years while the investigation against him continued.Footnote 61
On May 14, 2016, approximately 18 months after he was extradited, Dr. Diab was granted bail, with electronic monitoring. The release order was made by the investigating judge. The prosecutors successfully appealed the release decision and, after just 10 days on bail without incident, Dr. Diab was returned to a French prison. In France, Dr. Diab was represented by William Bourdon. According to Mr. Bourdon, the appellate court mentioned the risk of flight as a reason to overrule the decision to release.
On October 27, 2016, approximately two years after being surrendered, Dr. Diab was again ordered released. According to a news release issued by Dr. Diab’s supporters, the investigating judge stated there was “consistent evidence” suggesting Dr. Diab was in Lebanon at the time of the 1980 bombing.Footnote 62 That release order was immediately challenged by prosecutors and overturned by a panel of appeal judges who again apparently cited the risk of flight. Dr. Diab remained detained.
Judge Herbaut had questioned Dr. Diab over three days in January 2016. He had also made a trip to Lebanon where he conducted interviews.
An Ottawa Citizen article dated November 13, 2016, reported that the release order by the investigating judge, Jean-Marc Herbaut, included comments as to the strength of the case against Dr. Diab.Footnote 63 Apparently, Judge Herbaut had questioned Dr. Diab over three days in January 2016. He had also made a trip to Lebanon where he conducted interviews. According to the article, in his release order, Judge Herbaut wrote that his investigation had “cast serious doubts” on the fact that Dr. Diab traveled to France via Spain in September or October 1980 and, hence, that he was the bomber:
Late September, early October 1980 he was very likely immersed in his exams. We know this due to witness reports and documents from the Lebanese University confirming that he studied for his exams, sat them in Beirut and passed them.Footnote 64
The article stated that Judge Herbaut noted that there remained concerns about how Dr. Diab’s passport was found in the possession of a PFLP militant a year after the bombing. Nevertheless, he ordered Dr. Diab’s release. The article reported that Judge Herbaut’s reasons for doing so included the following passage:
The fact that there is some doubt about his involvement demands that he should be released without waiting for the outcome of the ongoing investigation… There is no evidence to indicate, or even imply, that these investigations will enable to gather further incriminating evidence against him.Footnote 65
After Dr. Diab’s release on bail was overturned by the appeal court, his lawyer commented that Dr. Diab’s situation was unprecedented in that he had been repeatedly ordered released by the investigative judge and, each time, the appellate court had overturned the release order. Additional release orders were made and then overturned by the Court of Appeal in the spring of 2017.
In December 2017, the investigating judge re-issued a notice about the closing of the investigation against Dr. Diab.
On July 28, 2017, the investigating judge issued a notice that he had completed his investigations. Counsel for Dr. Diab and the French prosecutors were both given an opportunity to file written submissions after which the investigating judge would make a decision as to whether to discharge Dr. Diab or refer the matter for trial.
In November of 2017, the investigating judge again ordered Dr. Diab’s release and again the release order was quashed by the Court of Appeal. I understand that detention orders can only be extended for a maximum period of six months at a time, at which point they must be reviewed. This may explain, in part, the reason for the multiple release orders (and subsequent decisions overturning those orders).
In December 2017, the investigating judge re-issued a notice about the closing of the investigation against Dr. Diab. It appears that, by this point, the investigating judge had received written submissions by counsel for Dr. Diab and by the French prosecutors.
The reasons for discharge were not released publicly.
On January 12, 2018, judges Jean-Marc Herbaut and Richard Foltzer (“Juges d’instruction anti-terroristes”) released their decision discharging Dr. Diab and ordering his immediate release from detention. The reasons for discharge were not released publicly. They were provided only to Dr. Diab, his counsel in France and the French prosecutors.
CBC News reported that it had obtained the dismissal order and quotes purportedly taken from the reasons are included in several news stories. According to the CBC report, the investigating judges in France concluded that:
- The handwriting analysis “cannot be accepted as sufficient incriminating evidence”.
- The “absence of Hassan Diab’s fingerprints among all those revealed… is unquestionably an essential element of discharge”.
- “It is likely that Hassan Diab was in Lebanon during September and October 1980 … and it is therefore unlikely that he is the man … who then laid the bomb on Rue Copernic on October 3rd 1980.”
- The intelligence information was “full of contradictions and inaccuracies” and could not “be considered as evidence to establish the guilt of Hassan Diab”.Footnote 66
On January 15, 2018, with the assistance of Global Affairs Canada, Dr. Diab returned to Canada where he was greeted by family, friends and supporters.
Prosecutors in France appealed the decision to discharge Dr. Diab and the decision to release him from custody. That appeal remains outstanding.
In October 2018, the Ottawa Citizen reported that the appeal judges in France ordered an expert review of controversial handwriting evidence that was key to Dr. Diab’s committal for extradition. The French appeal court judges said the expert review of the handwriting evidence should be completed by February 2019 and suggested a ruling would be forthcoming by the summer of 2019.Footnote 67
18. The Involvement of Global Affairs Canada and the IAG After Surrender
While he was detained in France, Dr. Diab had access to Canadian consular services – although the extent and nature of this contact is unknown. Consular notes are governed by privacy legislation and the notes relating to Dr. Diab could not be provided to or discussed with me in the absence of Dr. Diab’s consent, which, through his counsel, he declined to provide.
While consular staff cannot interfere in any way with foreign proceedings, they can make inquiries and send diplomatic notes, particularly where a case appears to be taking longer than anticipated.
Some information is available through media reports and the correspondence provided by the Department of Justice, which I have reviewed.
It appears that officials working at the Canadian Embassy in Paris met with Dr. Diab in custody in France soon after his arrival in that country. Canadian consular officials also met with the lawyer who represented Dr. Diab in the French proceedings.
It seems that Dr. Diab’s main concern, expressed at a meeting with consular staff on November 24, 2014, was that someone from the Canadian government would monitor the trial process and the procedures leading to it, to ensure it was fair and transparent. I understand that consular staff explained that was not part of their mandate but agreed to speak with the Department of Justice to see whether that was something they would do in the circumstances of Dr. Diab’s case.
In response to an inquiry from consular staff, counsel at the IAG suggested they speak to the legal department at the Department of Foreign Affairs. IAG counsel advised that no special assurances had been given that consular representatives would monitor Dr. Diab’s trial and that staff should conduct themselves in accordance with their ordinary policies.
Global Affairs Canada (GAC) provides consular services to Canadian citizens detained abroad. Those services typically include in-person visits with the detained individual and monitoring of any ongoing court proceedings. While consular staff cannot interfere in any way with foreign proceedings, they can make inquiries and send diplomatic notes, particularly where a case appears to be taking longer than anticipated. Consular officials also provide regular updates to family and friends in Canada and will attempt to facilitate communication between the detained person and family in Canada where possible.Footnote 68
In March 2017, the Minister of Justice received a letter from the International Civil Liberties Monitoring Group. The letter expressed concern that Dr. Diab, who was still detained at the time, had repeatedly been ordered released by the investigating judges in France but those release decisions were all overturned. It also expressed concern that Dr. Diab could be detained for an additional two years (four years in total) pending a decision on whether to refer his matter for trial. The Monitoring Group requested that the Minister raise Dr. Diab’s case with her French counterparts.
IAG counsel learned that in general, the investigative stage takes one and a half to two years and that in terrorism cases, and other complex matters, it can be longer.
The letter was sent to IAG counsel for their comment and advice as to how to respond. IAG recommended that no response to the letter be provided. In arriving at their advice, Mr. Lemire sought clarification from French officials as to how long Dr. Diab could be detained pending a determination of whether the matter would be referred to trial. Mr. Lemire was told that there is no prescribed period during which the investigating judge must complete his or her investigation. Pre-trial detention during the investigative stage is limited to four years. More specifically, a suspect can be detained initially for one year. Detention may be prolonged by successive periods of six months. In Dr. Diab’s case, because it was a terrorism offence, the maximum permitted duration of potential detention was four years. If the matter was then referred to trial, Dr. Diab could be detained for an additional period of time, until the completion of the trial.
In June 2017, IAG counsel met with the Minister’s Office to discuss the Diab matter. IAG counsel took the position that it would be inappropriate for GAC or Justice to reach out to French counterparts at a high level on Dr. Diab’s case as such contact could be viewed as an attempt to influence an independent process.
Dr. Diab, his counsel and others – including Amnesty International, the B.C. Civil Liberties Association and the Criminal Lawyers’ Association – denounced Canada’s extradition regime as unjust.
In the Fall of 2018, after Dr. Diab had returned to Canada, IAG counsel, during the course of regular meetings with their French counterparts, discussed the Diab case in order to better understand the French trial procedure and, to the extent possible, what took place specifically in the case of Dr. Diab. IAG counsel learned that in general, the investigative stage takes one and a half to two years and that in terrorism cases, and other complex matters, it can be longer. As noted above, the duration of detention is governed by law. There is a maximum period of four years in terrorism cases with set detention reviews. IAG counsel learned that the length of Dr. Diab’s detention in France is not uncommon in terrorism cases, given the complexity of the matters, their international dimensions, the requirement for expert opinions and the need to follow up on requests made by the person under investigation. As I discuss in Part C, this knowledge should routinely be gathered before the Minister makes the final surrender decision.
19. Calls for a Review
Throughout Dr. Diab’s extradition proceedings in Canada, during his detention in France and after his return to Canada in January of 2018, Dr. Diab, his counsel and others – including Amnesty International, the B.C. Civil Liberties Association and the Criminal Lawyers’ Association – denounced Canada’s extradition regime as unjust and criticized the conduct of counsel for the Attorney General who acted in Dr. Diab’s matter. They also raised concerns about France’s criminal justice system and the fact that Dr. Diab spent over three years in custody in France before the investigating judges concluded there was no case to put on trial.
On January 31, 2018, in response to these concerns, the National Litigation Sector and the Policy Sector (Criminal Law Policy Section) of the Department of Justice were tasked with preparing a “Lessons Learned” report. Defence counsel, the French authorities and all DOJ counsel were involved in the preparation of that report. They were consulted to determine the effectiveness and efficiencies of the Diab litigation and to gather the various stakeholders’ recommendations for improvement.
Counsel for Dr. Diab, human rights organizations and members of the public continued to raise concerns about the handling of Dr. Diab’s case, including the conduct of IAG litigators involved in the committal hearing. In May 2018, the Minister of Justice asked the Department of Justice to establish an external review of Dr. Diab’s extradition.
I have reviewed the Department of Justice report entitled “Information-Gathering Exercise Report”, hereafter referred to as the “Lessons Learned” report. It helpfully summarizes the information obtained during the various consultations and contains suggestions made by the main parties involved in Dr. Diab’s extradition case. From my review of the Lessons Learned report, it is apparent that counsel representing the Attorney General at the extradition hearing and those representing the Minister take the view that the current Canadian extradition system is fair and working well, but it could benefit from improvements to increase efficiency. On the other hand, counsel for Dr. Diab are of the view that fundamental changes to Canada’s extradition system are required.
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