Independent Review of the Extradition of Dr. Hassan Diab

Part C: Analysis, Response and Conclusions

This part of my report responds directly and specifically to the issues and questions raised in the review’s terms of reference and includes my findings, observations and recommendations.

1. Was the law followed in the conduct of the Diab extradition?

The very short answer to this question is: yes. Government actors followed the law in the conduct of the Diab extradition.

An extradition hearing is not a  trial, and the guilt or innocence of the person sought for extradition is not a live issue at any of the three stages of the extradition proceedings.

In Part A, I briefly summarized what the law requires before an individual in Canada can be committed for extradition by a Superior Court judge and then ordered surrendered by the Minister of Justice. I also noted that the public appears to have little understanding of Canadian extradition law and process. This lack of understanding on the part of the public is not surprising. In fact, many lawyers in Canada are not familiar with the extradition process.

As now Justice John Norris remarked, “The law of extradition is a foreign land for even the most experienced criminal lawyer. While a criminal charge must be somewhere in the mix of an extradition request, that is where the similarities between a criminal trial and the extradition process begin and end.”Footnote 69

First and foremost, an extradition hearing is not a trial, and the guilt or innocence of the person sought for extradition is not a live issue at any of the three stages of the extradition proceedings. For an individual facing extradition who wishes to proclaim their innocence, this is a difficult concept to accept.

Rather than determining guilt or innocence, the extradition process strives to balance two important objectives: 1) expeditious and prompt compliance with Canada’s international obligations to its extradition partners; and 2) meaningful protection of the rights and liberty interests of the person sought. The first objective is aimed at “bringing fugitives to justice for the proper determination of their criminal liability; and ensuring, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law.”Footnote 70

The protection of the liberty of the individual is one of the most important features of an extradition hearing.

At the same time, the protection of the liberty of the individual is one of the most important features of an extradition hearing. Concerns of expediency and comity cannot override the need for a meaningful judicial determination that, in the evidence provided, a requesting state has met the requirements for extradition.

For many, Dr. Diab’s case is disconcerting not because of the conclusions reached by Canadian courts or the manner in which DOJ lawyers may have acted, but rather because the law was applied faithfully and nevertheless produced a troubling result.

Striking the appropriate balance between these competing objectives is a delicate and difficult task. Dr. Diab, his counsel, his supporters, some legal academics,Footnote 71 as well as civil liberty groups and defence counsel associations have criticized the current state of the law and argue strenuously that the rights and interests of individuals sought for extradition have been sacrificed at the altar of expediency and comity. Writing not long after the amendments to the Extradition Act in 1999, Professor Anne Warner La Forest argued that the amended Act had shifted the balance too heavily in favour of comity over the liberty interests of those sought for extradition.Footnote 72 More recently, influential policy thinkers have advocated for consideration of extradition law reform, citing what they saw as the injustice visited upon Dr. Diab.Footnote 73

For many, Dr. Diab’s case is disconcerting not because of the conclusions reached by Canadian courts or the manner in which DOJ lawyers may have acted, but rather because the law was applied faithfully and nevertheless produced a troubling result.

Both sides of this debate see Dr. Diab’s case as a cautionary tale.

On the other hand, counsel within the DOJ, citing consistent jurisprudence from the Supreme Court of Canada upholding the constitutionality of the extradition regime, take the position that extradition in accordance with the Act is working well in Canada: that it adequately protects the liberty interests of persons sought while ensuring an efficient extradition process.

The deep divide in thinking about extradition and the difficult tension involved in balancing individual rights and international cooperation is on display even in recent cases at the Supreme Court of Canada.

It is interesting to note that both sides of this debate see Dr. Diab’s case as a cautionary tale. Dr. Diab and his supporters argue that Dr. Diab’s extradition – in the face of judicial findings that the case against him was weak and a conviction unlikely – reveals the failings of the Extradition Act and the urgent need for legal reform. At the same time, some on the government side suggest the Diab proceedings were unnecessarily protracted precisely because the extradition hearing took on features of a criminal trial rather than leaving those issues to be addressed in France.

The deep divide in thinking about extradition and the difficult tension involved in balancing individual rights and international cooperation is on display even in recent cases at the Supreme Court of Canada. In M.M., Justice Cromwell, writing for the majority, upheld the decision of the lower courts ordering Ms. M’s committal and surrender to the state of Georgia to face charges of kidnapping her children. Ms. M claimed that she fled with her children to protect them from their abusive father. In Canada, that claim potentially could have provided her with a defence. In Georgia, it arguably did not. The dissenting minority called surrender in these circumstances “Kafkaesque”.Footnote 74

The terms of reference do not direct me to evaluate or make recommendations about the careful balancing of the broader purposes of extradition with individual rights and interests. Instead, I have been asked whether the current law was followed in Dr. Diab’s case by the government and government actors, including counsel. I can say with confidence that it was.

There is no power to deny extradition simply because the case appears to the extradition judge to be weak or unlikely to succeed at trial.

Extradition proceedings are not equivalent to a trial and are not intended to afford the same rights and protections that a trial provides. The Extradition Act as interpreted by the Supreme Court of Canada permits the requesting state to support its request for extradition on the basis of a certified summary of evidence. There is no insistence on or requirement for sworn evidence. The ROC cannot, of course, contain any misrepresentations but our law does not require full disclosure to be made to the person sought for extradition nor does it require a requesting state to include all relevant evidence in the materials in support of extradition.Footnote 75 Indeed, even when Canadian authorities are aware of potentially exculpatory or otherwise relevant evidence available in Canada, there is no obligation to disclose that information, unless it is required to challenge the sufficiency of the certified ROC or to raise Charter arguments, as circumscribed by the case law discussed earlier and within the jurisdiction of the extradition judge.Footnote 76 Only a summary of the evidence that will be relied on in pursuit of extradition is required to be disclosed to the person sought.

Our law permits and, in fact, requires committal in weak cases so long as the evidence in the ROC could be “used by a reasonable, properly instructed jury to reach a guilty verdict”.Footnote 77 The Supreme Court has made it clear: “[t]here is no power to deny extradition simply because the case appears to the extradition judge to be weak or unlikely to succeed at trial .”Footnote 78 Judges in extradition cases are not permitted to weigh competing inferences or, except in rare circumstances, to consider exculpatory evidence. This restraint on the judges’ role is because the core purpose of extradition is not to decide a person’s guilt or innocence but – if the test for committal is met – to facilitate a trial on the merits in the requesting state. Nothing prevents counsel for the Attorney General from giving advice to a requesting state about how best to bolster its case for extradition at any stage of the proceedings; indeed, counsel is expected to provide this kind of assistance.

Our laws permit extradition where the prosecution of the person sought has been initiated – even though a trial is not a certainty.

The kinds of evidence that can be used to support an extradition request are broad. Although this case did not ultimately rely on intelligence-based information, the Court of Appeal for Ontario found no categorical exclusionary rule against the use of this type of information in extradition proceedings – as long as the Minister, before ordering surrender, is satisfied that: the intelligence information to be relied on was not obtained through the use of torture; and there are adequate protections and safeguards related to the use of intelligence-based evidence in the requesting state to ensure the person sought is subject to a fair prosecution.

While it is clear that the Act does not allow extradition of a person for mere investigative purposes (i.e. the person sought must be more than a suspect), the Court of Appeal made clear in this case that a trial in the requesting state need not be inevitable. Our laws permit extradition where the prosecution of the person sought has been initiated – even though a trial is not a certainty.

The extradition judge’s role is “not to determine guilt or innocence”.Footnote 79 Nor is that the role of the Minister in deciding the issue of surrender.Footnote 80 The ultimate guilt or innocence of the fugitive is not the concern of the Canadian executive or judiciary.Footnote 81 The task of the committal judge is to determine whether the evidence contained within the ROC meets the “low threshold”Footnote 82 described above. The task of counsel for the Attorney General is to act as an advocate for the requesting state and to assist the requesting state in advancing its case for extradition. The task for the Minister is to make a surrender decision based on considerations that are “primarily political in nature”Footnote 83; he or she is required to refuse surrender only in limited circumstances, including where it would be unjust or oppressive or would otherwise shock the conscience of Canadians.

In Dr. Diab’s case, each of these tasks was completed in accordance with the law as set out in the Extradition Act and interpreted by our courts.

2. Do any particular approaches taken by IAG counsel in the Diab extradition require improvement or correction going forward?

In the terms of reference, I was not asked to comment on state of the law or recommend changes to it. I was asked to evaluate the approaches taken by IAG counsel in Dr. Diab’s case against the backdrop of the current legal reality and to recommend areas of potential improvement.

Having reviewed the relevant materials and interviewed many of the parties, I have concluded that none of the above complaints have merit.

The focus of the criticism of Canadian government lawyers in their approach to Dr. Diab’s extradition centred on the following allegations:

Having reviewed the relevant materials and interviewed many of the parties, I have concluded that none of the above complaints have merit.

Counsel for the Attorney General acted properly in advising France about weaknesses in its case and did nothing improper by offering advice about how to respond to compelling defence evidence. Counsel for the Attorney General was not required to advise Dr. Diab, his counsel or the Court about any efforts France was making to respond to the defence expert handwriting evidence and, more importantly, was not in a position to tell the court what evidence France would rely on until the Bisotti report was completed and France had made a decision to rely on it. Finally, disclosure obligations in the context of extradition proceedings did not require counsel for the Attorney General to disclose (or include in the ROC) the finger and palm print analysis.

That being said, I have identified several areas where improvements in IAG approaches may be warranted. Before setting out more fully my findings and recommendations, it is important to describe the unique role counsel for the Attorney General plays in advancing extradition proceedings.

The Role of Crown Counsel in Extradition Proceedings

To think like a prosecutor in a domestic criminal proceeding is not to think like a government lawyer at an extradition hearing.

One of the IAG counsel remarked in my interview with him that to think like a prosecutor in a domestic criminal proceeding is not to think like a government lawyer at an extradition hearing. When acting on behalf of a requesting state in seeking committal for extradition, the role of counsel for the Attorney General is not to consider the strengths and weaknesses of the case or to assess the prospects of conviction in the requesting state. The limited role of the extradition judge – that is, to determine whether there is evidence available upon which a reasonably instructed jury could convict – guides the role of counsel for the Attorney General.

This role can be contrasted with the traditional role of lawyers who act as prosecutors representing Her Majesty the Queen in criminal cases. In such cases the role of Crown counsel is not to obtain a conviction but rather to “lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime”.Footnote 84 In their capacity as a Crown in domestic criminal proceedings, the role of counsel for the Attorney General is that of a quasi-Minister of Justice. Their function is to assist the Court in the furtherance of justice – not to act as counsel for any particular person or party. Crown counsel are permitted, and indeed expected, to act as strong advocates and vigorously pursue a conviction if that is a just result. However, as the Supreme Court explained long ago in the case of Boucher v. The Queen:

Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.Footnote 85

Such sentiments have been repeatedly confirmed by the Supreme Court in the years since the decision in Boucher.Footnote 86

At an extradition hearing, counsel for the Attorney General is acting as counsel for the requesting state.

At an extradition hearing, counsel for the Attorney General is acting as counsel for the requesting state. This role can be contrasted to Crown counsel in a domestic criminal proceeding who doesn’t act for a particular party. Defence counsel, who are experienced in defending clients accused of criminal offences in Canadian trial proceedings, might well be surprised that counsel for the Attorney General acting on behalf of the requesting state in extradition proceedings acts in a more purely adversarial role. Of course, in advancing a case for extradition, counsel for the Attorney General must act ethically and fairly – as they did in Dr. Diab’s case.

Before a trial in Canada, Crowns must consider whether there is a reasonable prospect of conviction. They also have an obligation to evaluate the strength of their case at all stages of the proceedings. These types of considerations are not relevant to counsel for the Attorney General in extradition proceedings. These government lawyers are not charged with looking into the future and asking whether, down the line, there will be problems with the case or whether there is a reasonable prospect that the evidence available is capable of convincing a jury beyond a reasonable doubt. Instead, the objective of counsel for the Attorney General at the judicial phase is modest: can they establish a prima facie case against the person sought?

There is good reason for this more circumscribed role. Counsel for the Attorney General in extradition proceedings are not building a case for trial. They are not responsible for and may not be knowledgeable about the trial procedures available in the requesting state; and, more to the point, they do not know what evidence will ultimately be available for trial in that country.

It seems to me that some of the conflict that arose between counsel in the course of Dr. Diab’s committal proceedings and the allegations of misconduct directed at IAG counsel stem, at least in part, from the disconnect between the traditional role of Crown counsel in Canadian criminal proceedings and the role of counsel for the Attorney General in extradition proceedings.

To help address that disconnect, I recommend below the creation of a policy manual or “Deskbook” for counsel for the Attorney General in extradition proceedings, which would:

In the following pages, I discuss the main concerns raised about the IAG’s approach to the Diab case and, where appropriate, recommend improvements. In terms of opportunities for improvement, I offer a number of recommendations related to:

a. IAG Organization and Roles and the Potential for Conflict of Interest

Issues have been raised regarding how the IAG is organized and whether it maintains the requisite independence at all stages of processing a file for extradition. In general, the IAG acts like a head office. It has many responsibilities, including supporting the Minister in his or her administration of the Extradition Act and the Mutual Legal Assistance in Criminal Matters Act, as well as in the negotiation and updating of treaties. The IAG consists of about 25 counsel supplemented by dedicated, skilled support staff. It reports to the Assistant Deputy Attorney General, Litigation who, in turn, reports to the Associate Deputy Minister, the Deputy Minister and the Attorney General.

As explained above, there are three distinct stages of an extradition: Authority to Proceed (ATP); the extradition or committal hearing (judicial); and the surrender decision (Ministerial). IAG Counsel is involved at all three stages – although at the “committal” stage of the proceedings they act in an advisory capacity rather than as litigators.

Advisory and Litigation Roles
Recommendation #1:

The role of IAG counsel acting in an advisory capacity should be kept separate from the role of DOJ counsel acting on behalf of the requesting state at the extradition or committal hearing, whenever possible. Efforts should be made to maintain a buffer, where appropriate, between officials in the requesting state and the litigator in Canada advancing the case for committal.

Traditionally, the litigators – the counsel who represent the requesting state at the committal hearing – will come from regional offices of the DOJ and will not be members of the IAG. For example, if an extradition case is being litigated in Vancouver, someone from the British Columbia Regional Office will be assigned. Not too many extradition cases are litigated in Ottawa but, as that is where Dr. Diab lived, it was convenient to assign IAG counsel from head office. Because the request came from France, the case required someone fluent in French. When the French originally visited Canada to discuss the potential extradition, Claude LeFrançois attended the meeting to provide a solid French-speaking presence. Once the request for extradition had arrived and was approved, he was assigned to act as the litigator because of his interest in and familiarity with the case, his proximity and his fluency in French.

As a general rule, the extradition litigation process contains a buffer between the DOJ counsel litigating the case and the requesting state. For example, if DOJ counsel require more instructions from the requesting state or want to provide an update, that counsel would contact the IAG in Ottawa who would contact their counterparts in France who would contact the investigating magistrate. At the time of Dr. Diab’s case, there was an IAG counsel in Paris who would also be involved.

It is better practice that, wherever possible, DOJ counsel litigating a case go through the channels described above – if only to protect themselves from any awkwardness that might emerge from having direct discussions with the requesting state about strategy and similar matters.

However, at a certain point well into a court case, the litigator is the one who knows the case the best and being able to have direct discussions can cut through a lot of steps. In this case, those direct contacts happened on occasion. There is nothing improper about the contacts; however, if at all possible, I would not recommend them as a matter of course.

Roles at the Committal and Surrender Stages
Recommendation #2:

To avoid concerns about potential conflicts of interest, the IAG should consider adopting a formal policy whereby counsel involved in approving the Authority to Proceed do not act as litigators at the committal stage, and counsel who provide advice to the Minister at the surrender decision stage have not been involved in either the Authority to Proceed decision or the extradition/committal hearing.

A concern was raised that the member of the IAG assigned to assist the Minister navigate the surrender decision stage of the process may not be sufficiently removed from colleagues in the IAG office involved in the committal hearing, which may unduly influence their considerations. I do not agree. This concern reflects a fundamental misconception about what it means to be Crown counsel. Counsel assigned to assist the Minister has a duty to assist the Minister. That is a serious responsibility. The Minister’s decision is subject to judicial review by the Court of Appeal. That counsel shares everything with defence counsel except their final privileged legal memorandum.

During Dr. Diab’s case, defence counsel complained about the IAG process of summarizing the defence submissions for the Minister. That practice was understandably stopped. The Minister ought to read all the material presented in any event. The Minister and his or her staff know to ask good questions and to probe.

Having someone from the IAG, who had no role in the litigation at the committal stage, assigned to assist the Minister at the critical surrender decision stage makes sense because extradition is a highly specialized area. Few know this area better than IAG counsel. Having interviewed counsel who acted in this capacity in the Diab matter as well as counsel who have acted in that role in other matters, I am absolutely convinced that IAG counsel fully understand the significance of giving ethical and quality advice to the Minister.

I have no doubt that IAG counsel already act in a manner that ensures the requisite independence at each stage of the extradition proceedings. However, adopting a formal policy in this regard would increase transparency and help to ensure the appearance of independence.

The Importance of Consistent Policies and Procedures

One other potential improvement may be useful. Prior to the creation of the Public Prosecution Service of Canada (PPSC) – when Department of Justice counsel, including the IAG, were part of one large service – there was a Deskbook that contained all policies applicable to those involved in the extradition and mutual legal assistance process. Once Justice and the PPSC went different ways, the PPSC produced a new Deskbook that understandably omitted a discussion of those areas.

Recommendation #3:

The Department of Justice should require the IAG to produce an up-to- date Deskbook on extradition proceedings and mutual legal assistance. The Department of Justice should also consider making appropriate portions of the Deskbook available to the public to promote a better understanding of the extradition process and mutual legal assistance.

Work has been done by IAG counsel to create an updated Deskbook for extradition and mutual legal assistance matters. In the interim, while that work is being completed, portions of the old Deskbook are available on the DOJ website.Footnote 87 A Deskbook, perhaps enhanced by some of the content suggestions made in this report, will be useful for training and it will enhance transparency. Department of Justice spokespersons could also use this resource when, as in Dr. Diab’s case, they are called on to answer public inquiries about the extradition system and the practices of DOJ counsel.

In my view, a better public understanding of the role played by all parties in extradition proceedings can only enhance respect for our extradition system. However, privileged information or advice should obviously not be included in any material made available to the public.

b. The Quality and Usefulness of the Record of the Case

One of the IAG’s central roles is to provide advice to extradition partners and requesting states that are submitting materials to support an extradition request – in particular the ROC. Are there any lessons to be learned about this role from the ROC in Dr. Diab’s case? Yes.

The Timing of a Request for Extradition

Before looking more carefully at the contents of the ROC in this case, I want to make an observation about the timing of requests for extradition and the advice that the IAG should provide on this topic. The law in Canada is clear that extradition is not permitted for mere investigative purposes. As the Court of Appeal held in Dr. Diab’s case, extradition “is not to be used as a tool by foreign states to question people as potential witnesses or suspects.” To trigger the application of the Extradition Act, more is required. The extradition request must be for the purpose of prosecuting the person.Footnote 88

Recommendation #4:

Requesting states should be encouraged to complete their investigations in relation to the person sought before making a request for extradition subject, of course, to public safety concerns.

The Court of Appeal found that threshold was met in Dr. Diab’s case, but it is not difficult to imagine instances where an extradition partner might seek Canada’s assistance before it is ready to put the person sought on trial. In providing advice on when to make a request for extradition, IAG counsel may wish to explore with their foreign counterparts the progress of the investigation in the requesting state. Our extradition partners should be advised not to make a formal request for extradition until after their investigations of the person sought are complete, or at least sufficiently complete to have made a decision that the matter should be referred to trial if extradition is successful. Of course, it has always been recognized that where a fugitive is a danger to the public, the authorities will be obliged to act with dispatch.

Advice on the Contents of the ROC

Of course, the requesting state need not put everything in the ROC – there is no duty to disclose as in domestic criminal cases; however, the ROC must contain sufficient evidence to justify a Superior Court Judge ordering committal.

I do believe that less is better. In providing advice on the evidence to be contained in the ROC, IAG counsel must and, of course do, bear in mind the law on extradition and what evidence will be sufficient to justify committal. Nevertheless, the more that finds itself into the ROC, the greater the possibility that extradition proceedings will be protracted. Of course, the requesting state need not put everything in the ROC – there is no duty to disclose as in domestic criminal cases; however, the ROC must contain sufficient evidence to justify a Superior Court Judge ordering committal.

As discussed, Dr. Diab’s case was unusual because of its age and complexity, as well as the fact that the investigation passed through multiple countries. The ROC – aptly described as a mixed bag – was not traditional to be sure. Our legal community would be used to a format that might say: “witness A will say X, witness B will say…”. However, that approach is not typical of civil countries. In some countries, the concept of an affidavit is unknown. In this case, the ROC was a mixture of traditional evidence, intelligence, the theory of the case, newspaper accounts and more.

Indeed, it appears that the investigating judge included the results of conversations with some reporters.

Recommendation #5:

Counsel for the IAG should actively advise requesting states to produce streamlined and economical materials to support their extradition requests. They should provide advice on the most effective and efficient way to structure the ROC, the kinds of evidence to include and the type of information to leave out. When it comes to the Record of the Case, less is usually better.

In advancing the case for committal for extradition, counsel for the Attorney General did not rely on many of the non-traditional elements of the ROC in this case. Their inclusion was unnecessary and may have contributed to unnecessary litigation. They certainly did not promote efficiencies in the extradition proceedings.

The Use of Expert Opinion

What evidence should be included in the ROC and what should be left out? In this case, the original two French handwriting reports were included in their entirety in the ROC. Some on the government side have suggested that these reports should not have been attached to the ROC but merely summarized and that appending the reports resulted in unnecessarily protracted extradition proceedings.

While it is true there was no obligation to include them, attaching the reports expedited the search for the truth. They gave Dr. Diab a significant amount to work with and, through his extremely diligent counsel, he did so successfully. Defence counsel skillfully exposed that the reports were partially dependent on some writing samples that belonged not to Dr. Diab but to his previous wife.

It is rare for extradition to be grounded so pivotally on expert evidence.

To my mind, in these circumstances, it was important to expose that shortcoming before extradition rather than after. I appreciate that this may be inconsistent with my suggestion to include less in an ROC but I make that recommendation not in the context of expert opinion evidence. In this case, the handwriting analysis was the linchpin of France’s case, so attaching the reports made sense.

As a frame of reference, it is rare for extradition to be grounded so pivotally on expert evidence. It is even more rare for an extradition case to turn on expert evidence related to a soft science, which is how I would characterize handwriting analysis and how both the extradition judge and the Court of Appeal described it in this case.Footnote 89 Although handwriting analysis is not a commonplace forensic tool in Canadian criminal courts, its use is not unknown. Indeed, section 8 of the Canada Evidence Act provides:

Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made  by witnesses, and such writings, and the evidence of witnesses respecting those writings, may be submitted to the court and jury as proof of the genuineness or otherwise of the writing in dispute.

Recommendation #6:

Where an extradition request rests to a significant degree on expert opinion evidence, the report itself – rather than simply a summary of its conclusions – should be appended to the ROC and thereby disclosed to the person sought.

The section does not distinguish between expert and non-expert opinion on handwriting. That means a witness does not need to be qualified as an expert before being permitted to give evidence comparing handwriting samples. Indeed, in Canada, a trier of fact (either a judge or a jury) is permitted to compare the handwriting on two or more documents without the assistance of any witness interpreting or identifying the relevant writing, though the trier must be cautioned about the dangers of doing so.Footnote 90

In recent years, our justice system has been repeatedly cautioned about forensic sciences, most notably in the Inquiry into Pediatric Forensic Pathology in Ontario (also known as the Goudge Report). The findings and recommendations in the Goudge Report reflect a growing recognition that: incriminating expert testimony can contribute to wrongful convictions; and some forensic soft or pseudo sciences have not been subjected to validation studies, proficiency testing, and other forms of reliability assessment. In his report, Justice Goudge emphasized the important role judges play in Canadian criminal trials in determining whether expert scientific evidence has sufficient threshold reliability to be considered by the trier of fact. He notes that this exercise should not be confined to so-called “novel science”. Footnote 91

Although they perform a different function than trial judges, extradition judges must also have some ability to assess the reliability of expert evidence relied on in support of extradition. The exception to the “less is better” guiding principle for ROCs involves expert reports. Including these types of reports promotes fairness by ensuring the extradition judge can make a meaningful determination of whether the report is manifestly unreliable should the person sought attempt to challenge the evidence.

The Use of Intelligence Information

The question of whether intelligence information should be included in an ROC has no easy answer. Some have suggested that including in the ROC evidence obtained through intelligence gathering prolonged this case. But, as the Court of Appeal for Ontario has indicated, no categorical rule can be advanced to exclude intelligence-based evidence because of the reality of terrorism. Europe’s reality is not our reality. The Court of Appeal held:

…We do not think there should be a categorical exclusionary rule against resort to intelligence-based information in these kinds of situations. To impose such a rule would effectively eviscerate the ability of Canadian and international authorities to bring terrorists to justice because the evidence in such cases is very often sourced through international intelligence agencies. The central issue is the risk  that such evidence will be used at trial against the named person in a fashion that fails to protect the person's fundamental right to make answer and defence and have the benefit of a fair trial.Footnote 92

The Court of Appeal considered the issue of intelligence-based information in the context of the Minister’s surrender decision. It did not consider this issue in relation to the committal stage of extradition proceedings because intelligence-based information had not been advanced as a basis for committal before Justice Maranger. As explained above, when the defence was unsuccessful in having the Bisotti report excluded, counsel for the Attorney General decided not to rely on the intelligence evidence in the ROC in seeking committal. The defence had been permitted to adduce evidence to attempt to show that such evidence was manifestly unreliable; however, Justice Maranger never made any findings in this regard because of the position taken by counsel for the Attorney General.

Practical realities help explain why at least some intelligence information was included in the ROC in Dr. Diab’s case: it played an important narrative function. It helped tell the story as to why and how Dr. Diab became a target of the investigation and why his extradition was being sought decades after the alleged offence. In the absence of the intelligence information, the ROC would have been less coherent.

Including intelligence information in the ROC could also be viewed as useful to the person sought. It telegraphs that the requesting state intends to rely on intelligence. On the other hand, if intelligence-based information is included in the ROC, it may be challenged as manifestly unreliable – given the Court of Appeal’s finding that “the frailties of using evidence from international intelligence agencies are universally acknowledged” – and can generally be expected to prolong the litigation. When intelligence-based information is at play at the surrender decision stage, the Minister will need to be satisfied that: it is not the product of torture; and adequate procedural protections are available to the person sought to test that evidence in the requesting state.

In hindsight, it would be easy to say that the decision to not rely on the intelligence-based information in the ROC could have been made much earlier, but that would be wrongheaded. Reliance on at least some of the intelligence-based information in the ROC was a live possibility until the admissibility of the replacement handwriting report was resolved. So, while as a general proposition, intelligence-based information would not be DOJ counsel’s delight, in these circumstances its presence in the ROC, the potential reliance on it and withdrawing that reliance late in the day all made complete sense.

Asking the Requesting State to Translate the ROC
Recommendation #7:

The IAG should consider implementing a practice of asking the requesting state to provide an official translation of the ROC when it is reasonable to anticipate that translation issues will arise during the extradition proceedings.

In Part B, I briefly described issues related to the translation of the ROC and SROC and the lengthy litigation that resulted. Given that the extradition request was lodged by a French-speaking requesting state to a country that recognizes French as one of our official languages, it is not surprising that the request for Dr. Diab’s extradition was in French. However, Dr. Diab’s French language skills were not up to the task. He was facing a very complex proceeding in relation to a highly serious set of allegations. An early bail hearing had to be redone because Dr. Diab’s language rights were not sufficiently protected. The material had to be translated. The translation process took a lot of time and energy. It was a contentious exercise with much at stake. There were many arguments and many rulings. The committal judge had to devise a protocol to deal with disagreements. Much like the Interpretation Act, rules had to be devised as to whether, in the case of a dispute, the French ROC should be given more weight. It should.

While making the extradition request in French complied with the treaty, it resulted in Canada having to translate the materials to English to ensure due process for Dr. Diab. This led to delays as well as litigation about the translation of particular words and phrases.

I would propose that the better option, where it can be anticipated that translation issues will arise, would be for the requesting country to provide an “official” translation as concurrently with the original ROC as reasonably practicable. Providing a true official translation would certainly eliminate much of the back and forth that stems from translation by committee. The official translation might still be open to challenges to words and phrases, but my sense is that the process would be less taxing for all Canadian actors. After all, asking Canadians to perfectly translate foreign terms from a foreign system cannot be easy.

The Support Provided to the Requesting State
Recommendation #8: 

The Department of Justice should consider reinstituting an IAG counsel liaison position in France.

France and Canada are treaty partners. Part of the responsibility of a good partner is to provide quality legal advice about how a request should proceed. After all, one is often dealing with foreign frameworks and foreign legal culture.

As I have previously noted, if an investigating judge in France wants something, they simply ask. That approach is radically different from our world where such requests have to go before an independent judicial officer who must be presented with detailed reasons or grounds for the search. The IAG liaison position, then occupied by Jacques Lemire, helped translate what France had to demonstrate in their extradition package. I would not want to hazard what would have happened if that support and expertise had not been provided. Certainly, the value of the role justifies reconsidering its reinstitution. I have no doubt there are significant financial and other issues at play in posting IAG counsel abroad. At the same time, it seems clear that increased efforts to help extradition partners understand our respective criminal justice systems could make extradition proceedings more efficient. It is particularly critical to facilitate dialogue with our international partners when timely additional information is needed to respond to issues raised during the extradition process.

Having someone on the ground who can provide information to French authorities will lead to a better understanding of Canadian procedures and proceedings in France. The liaison will also be able to gather information about French procedures and proceedings that will aid in the extradition process here.The assistance provided by the Department of Justice does not stop at the framing of the ROC. It continues throughout the extradition proceedings.

One criticism levelled at IAG counsel involved in the Diab case is that they were overly zealous in urging France to consider obtaining a new handwriting report in light of the evidence from defence experts who identified that a few samples of Dr. Diab’s ex-wife had tainted their conclusions. On November 21, 2009, IAG counsel wrote a letter to France that was, years later, reported in the media.

When IAG counsel saw that France’s case was critically impacted by errors on the part of France’s handwriting experts, they had a responsibility to point that out and discuss with France how the situation could be remedied.

To be clear, I find absolutely nothing wrong with counsel in charge of litigation on behalf of a requesting state lending their skill regarding the carriage of the case – both at the commencement of an extradition request and throughout the litigation.

Counsel for the Attorney General advancing the case for extradition are there to provide skill and guidance within ethical bounds. Counsel are not there as empty vessels or disinterested observers:

they are litigating, with skill and commitment, on behalf of the requesting state. If it were not so, treaty relations would suffer, and potential criminal actions could go unanswered. When IAG counsel saw that France’s case was critically impacted by errors on the part of France’s handwriting experts, they had a responsibility to point that out and discuss with France how the situation could be remedied. France would then have to make a decision. That was what the November 21st correspondence was about and nothing more. As the aptly named related statute reminds us: we live in a world of mutual legal assistance.

Neither the defence nor the extradition judge knew about the November 21st letter during the committal hearing. It came to light only after Dr. Diab had been extradited to France. As a result, the propriety of IAG counsel sending the letter was not argued or addressed before Justice Maranger in either of the defence’s abuse of process motions.

However, what was argued and thoroughly considered by Justice Maranger was the propriety of counsel for the Attorney General seeking an adjournment to allow France time to: consider adducing additional evidence in response to defence attacks on the two original handwriting reports; and then introduce the Bisotti report in the form of a Supplementary Record of the Case some months later. These issues among others – including the non-disclosure of certain finger and palm print comparisons – were litigated during two abuse of process applications, and the extradition judge rejected Dr. Diab’s claims. Justice Maranger did not find the conduct of France or IAG counsel representing France in Canada to be abusive.

While the criticism levied against IAG counsel during the extradition proceedings spilled out into the media, public opinion seems to have lost sight of the fact that: these issues were litigated; the judge did not find the conduct legally abusive; and the defence did not pursue abuse of process grounds on appeal. Regardless, the question remains as to whether practices could be improved.

At the end of the day, I cannot find any fault with counsel for the Attorney General’s handling of the supplementary handwriting report. I am not at all sure what counsel could have done differently. Of course, it would have been better if the two original experts had not both committed a serious error and if someone had caught the error early on. In saying this I am not at all suggesting that IAG counsel should have rushed out and retained their own handwriting experts to double check the expert evidence forwarded by the requesting state. Such a move would contribute to possibly lengthening proceedings or casting doubt on the requesting state’s experts. That is not their role.

Ultimately, counsel for the Attorney General did not rely on the impugned reports and withdrew reliance on them. They played no part in the committal decision or the Minister’s decision to surrender Dr. Diab. Thankfully, excellent work by defence counsel caught the error, but not before a lot of expense and court time had been expended while Dr. Diab, on strict bail conditions, continued to face removal from Canada.

With the benefit of hindsight, I wonder whether counsel for the Attorney General could have taken a different approach when, in October 2009, defence counsel provided its expert reports. Given that counsel for the Attorney General was of the view that the presiding judge would find the reports admissible, some time and effort could have been saved by not opposing their admission and, instead, immediately seeking an adjournment for France to consider how or if it wished to respond to the apparent flaws in its evidence.

Of course, at that time, counsel for the Attorney General could not have known that a new handwriting analysis would be forthcoming. It must also be remembered that it is a rare case where committal for extradition depends so heavily on expert opinion evidence and where the threshold reliability of that evidence in the ROC will be successfully challenged. Counsel were in largely uncharted waters.

c. Candour and Discretion

In characterizing the government lawyers as overly zealous in their pursuit of Dr. Diab’s extradition, some have suggested that counsel for the Attorney General made false representations to the extradition judge and withheld exculpatory evidence. As I explain more fully below, those suggestions are unfair and should be rejected.

Representations to the Court

One area of contention that received a lot of attention in the media following Dr. Diab’s return to Canada was whether counsel for the Attorney General was candid with the court during the period pending France’s decision about how to respond to the flaws in the original handwriting evidence revealed by the defence.

They mistakenly relied, in part, on handwriting samples that did not belong to Hassan Diab but were authored by his previous wife as part of samples gathered when the couple lived in the United States. Counsel for the Attorney General surmised that, given the posture of the defence, some of the samples relied upon did not belong to Dr. Diab. Eventually, new expert handwriting opinions were produced that made, among others, that precise powerful point. IAG counsel had a decision to make: could it go ahead with the impugned reports arguing that the incorrect samples did not entirely taint the conclusions that Dr. Diab was, in all probability, the author of the registration card at the Hotel Celtic? Could it argue that the impugned reports did not reach the standard of “manifestly unreliable”? Or should the IAG explore with France the possibility of preparing a brand-new analysis, untrammelled by the same error?

The picture became clearer when the presiding Judge ruled on December 11, 2009, that he would admit the proposed defence evidence. Specifically, Justice Maranger permitted the defence to call two of its four handwriting experts and file all four reports subject to counsel for the Attorney General’s right to cross-examine the authors of all four reports. At that stage, counsel for the Attorney General successfully requested an adjournment to allow France to determine its next steps.

Over a number of court appearances, the Court asked counsel for the Attorney General to report on progress regarding France’s response to the defence handwriting developments. Counsel informed the court that he was unable to provide any update on whether France would be seeking to adduce additional evidence, and, if so, what the nature of such evidence would be. At the time, of course, counsel for the Attorney General knew that a new handwriting comparison report had been commissioned and that, if it were favourable, France would include the report in a Supplementary ROC (SROC). The decision by counsel for the Attorney General to be less than specific about what was afoot was, nevertheless, understandable. A competent expert had to be found. Once retained, Ms. Bisotti needed to access the original samples. She required time to prepare the report. Her conclusion – which could impact counsel’s position in respect of the two earlier reports – would not be known until she was finished. It should be noted that Mr. LeFrançois received the new report on Friday, May 7, 2010, and provided it to the defence and the Court at the next opportunity: a previously scheduled in-chambers meeting on Monday, May 10, 2010.

Counsel for the Attorney General were in a difficult spot. At least three factors stood in the way of counsel being completely open with the court. The first reason is elementary: as there was no new report there was nothing to report on. Until the evidence existed it did not exist.

The presiding Judge expressed an understandable degree of frustration at the timing of the presentation of the SROC and at the failure to advise the Court of the possibility of new handwriting evidence – a sentiment that is hard to argue with – but he found no evidence of abuse of process and was not otherwise critical of the behaviour.

Second, in view of the attack on the original handwriting reports, France was pursuing other avenues of evidence beyond the handwriting comparison. The most prominent example was the distal prints comparison, the results of which were received in January, but there were other avenues genuinely being considered that involved fresh investigative measures, including interviews or re-interviews.

Third, counsel for the Attorney General believed, correctly in my view, that disclosing the fact that France was pursuing a new handwriting comparison report would lead to protracted and unnecessary proceedings. Had counsel for the Attorney General announced that it was awaiting the results of a new handwriting analysis, that may very well have given rise to a host of legal consequences and questions. Who was being approached? What instructions had been given? When was it coming? What would the Attorney General’s position be regarding the two impugned reports that were still part of the ROC? Wasn’t the fact that another expert was being sought illustrative of the diminishing worth of the original reports?

More to the point, counsel for the Attorney General did not want to advise the court about the new report because he did not know what the conclusion of that report would be. The fact of the matter is that, if the report was not helpful to France’s case, there would have been no obligation to share the results of the report – or even its existence – with Dr. Diab and his counsel at that juncture. Given the centrality of the handwriting analysis to the case for extradition, that legal reality may be surprising to some but it is consistent with the limited screening function of committal hearings described above. Nevertheless, I have no doubt that had the defence been aware that a new report had been commissioned but was not being relied on, he would have made every effort to ensure this was a matter considered by the presiding Judge.

And there is one more critical piece. As time progressed, the fact that a new handwriting report might be in the offing became increasingly apparent. After all, the initial adjournment was granted in response to the work of the defence handwriting experts. As time passed, the presiding Judge correctly speculated that, if a positive handwriting report was freshly produced, the Attorney General, on behalf of France, could withdraw reliance on the two impugned reports. That is exactly what happened. There never was a need for the presiding Judge to make a ruling as to whether the two earlier reports were manifestly unreliableFootnote 93 – although I am confident he might well have done so had the matter been litigated.Footnote 94

The reality is, as the presiding Judge recognized in granting the Attorney General’s adjournment request and dismissing the abuse of process application, under the Extradition Act the requesting state may always attempt to supplement the ROC, a not uncommon occurrence in extradition practice. As if that were not enough, much like at a preliminary inquiry, there is no bar in extradition preventing a requesting state from initiating a second application after withdrawing the initial one or in the face of a discharge. Presumably, such circumstances would be rare and could be justified in a principled fashion.

Regardless of my view, the fact is that the presiding Judge, when presented with an allegation that counsel for the Attorney General had been disingenuous, rejected the accusation and the matter was not appealed further. The presiding Judge expressed an understandable degree of frustration at the timing of the presentation of the SROC and at the failure to advise the Court of the possibility of new handwriting evidence – a sentiment that is hard to argue with – but he found no evidence of abuse of process and was not otherwise critical of the behaviour.

Allegations of Non Disclosure

Another significant critique of counsel for the Attorney General is that, as part of the committal hearing, they did not disclose “exculpatory” fingerprint and palm print evidence. As with the complaint about the Bisotti report, described above, this allegation of abuse of process was adjudicated and rejected by the extradition judge. It was also rejected by the Minister as a basis for refusing surrender. Neither of these decisions were challenged on the committal appeal or the judicial review application at the Court of Appeal.

There are two main areas in the Diab matter that touch on disclosure. They are:

Each raises slightly different issues.

Palm Print

As indicated earlier, a palm print was found inside a vehicle associated with the bombing. The theory was that the palm print might relate to one of the associates suspected in the bombing. Dr. Diab’s palm print was obtained by the RCMP shortly after his arrest in Ottawa, along with his fingerprints. On November 20, 2008, an RCMP corporal reported that the palm print taken from Dr. Diab did not match the palm print on the window of the abandoned rental car in Paris found shortly after the October 3, 1980, bombing.

Although IAG records do not indicate when that report was received or if it was transmitted and to whom, one thing is clear: counsel for Dr. Diab received it before committal was ordered. Indeed, the report is referred to as part of defence counsel’s application record during the second abuse of process application before the extradition judge. The IAG cannot say precisely whether it “disclosed” the report to defence counsel or not. It was not tendered as part of the ROC or SROC but, regardless, defence counsel received it and put it to use. The criticism of counsel for the Attorney General’s handling of the palm print report was not found to be abusive conduct. Again, it was not the subject of a ground of appeal.

In submissions to the Minister, Dr. Diab’s counsel took the position that it was wrong not to include the palm print comparison in the ROC. He urged the Minister to seek assurances that France would place both the palm prints comparison and the distal prints comparison in the trial dossier. The Minister rejected the plea to seek assurances as that would be a decision for France and, in any event, Dr. Diab would have the right to tender the evidence.

As set out in the section relating to the law of extradition, Dr. Diab’s right to disclosure in the context of the extradition proceedings was limited. It did not include a right to disclosure of exculpatory evidence. Leaving this aside, counsel for the Attorney General took the view that the evidence was not exculpatory but neutral. It showed that one palm print, which may or may not belong to one of an unknown number of confederates, did not belong to Dr. Diab. In any event, the defence had the palm print comparison analysis in its possession before the end of the extradition hearing.

The defence’s primary argument was that the palm print comparison and the distal fingerprint comparison “excludes Mr. Diab as the Alexander Panadriyu alleged to have participated in the bombing”. To focus on the palm print for a moment, it did not appear that there was any concrete evidence based on the ROC or the Supplementary ROC that Panadriyu was in the car in question. There were allegedly a number of confederates involved in the bomb plot. The fact that the palm print did not match Dr. Diab did not exclude him as a suspect. That was what the Minister determined. That seems right.

Fingerprints

This issue relates to prints lifted from the arrest form used to process Panadriyu for the theft of pliers from a Paris hardware store shortly before the bombing. In late September 1980, Panadriyu was taken to a Paris police station and questioned about the shoplifting. A “procès-verbal”, a record of the police interview with the suspect and the incident more generally, was prepared. As is the custom, he was asked to sign the document. The signature was a series of flourishes and, in any event, false. The French police located the original form in 2009. It was tested for fingerprints, which resulted in the discovery of six (6) distal fingerprints. Distal prints are prints left by the ends of fingers. The thinking was that the suspect, operating as Alexander Panadriyu, may have handled or touched the document as part of his review before signing.

On his arrest, both Dr. Diab’s regular fingerprints and palm print were taken, but distal prints were not. In October 2009, France made an MLAT request for Canada to take distal prints. An Impression Warrant was judicially authorized on November 20, 2009. On November 21, 2009, Mr. LeFrançois wrote a lengthy letter to BEPI, the central authority for France regarding extradition and mutual legal assistance. In that letter, he suggested that France give consideration to a new handwriting report and that the distal prints from the “procès-verbal” be forwarded to Canada for comparison. France agreed to proceed as suggested on both fronts.

Dr. Diab’s distal prints were obtained on November 23, 2009. In December, the RCMP received the prints from France on a CD and prepared a report that was finalized and sent to Mr. LeFrançois on January 26, 2010.

The report indicated that there was no match, but two of the six usable prints “could not be eliminated” as being those of Dr. Diab. Counsel for the Attorney General did not seek to tender the report as, in his view, it did not assist in advancing France’s case. Counsel for the Attorney General also took the position that the results were inconclusive not exculpatory and considered the possibility that Dr. Diab, posing as Panadriyu, may not have left any distal prints on the paper.

Although counsel for the Attorney General did not provide the distal fingerprint report to Dr. Diab prior to the conclusion of the committal hearing, it was the subject of a sending order to France signed on June 30, 2011. France, of course, was interested in the collection of all evidence gathered in Canada. As part of that process, the report was shared with the defence earlier that month, on June 11.

On the second abuse of process application in October, 2010, Mr. Bayne squarely raised the non-disclosure of the distal prints comparison, urging that the only reasonable explanation for the failure to tender the police report was that the prints on the “procès-verbal” were not those of Dr. Diab. He further submitted that non- disclosure was an abuse of process, which contributed to the general unfairness of the extradition request, and another reason to stay the extradition.

On March 1, 2011, during defence submissions on the issue of committal, the defence again raised the fact that the distal comparison was not disclosed to him and that the only reasonable inference was that the distal prints on the report did not belong to Dr. Diab. Counsel for the Attorney General did not dispute the submission even though the reality was that the distal comparison was inconclusive. As mentioned, no abuse of process was found and committal was ordered. The distal prints did not form the basis of a ground of appeal. It was raised with the Minister as a reason to not surrender Dr. Diab, but rejected by the Minister. In his letter of April 4, 2012, the Minister found that the evidence could not be considered as exculpatory, need not have been part of the ROC process, and would likely be part of the investigative file being accumulated in France and presumably could be raised at a French trial.

Discretion and Disclosure

Within the wide sweep of their discretion there is room prior to committal to share information that, though not subject to a legal disclosure requirement, could be shared.

Counsel for the Attorney General had no legal duty to share the results of the print comparison analysis. Neither the Charter nor the Extradition Act requires disclosure of evidence not being relied on for extradition. However, the decision to not provide this information to defence counsel had potential reputational consequences both for the IAG and the particular counsel involved. As I noted earlier, complaints about the IAG and the counsel who had carriage of the case, omit two critical facts: the committal judge twice rejected claims that the prosecutors’ conduct was abusive; and the defence did not appeal the conduct issue to the Court of Appeal.

Sharing information is not prohibited and would have the benefit, if nothing else, of enhancing transparency.

It is not my place to suggest that counsel for the Attorney General acting in extradition cases be guided by rules that our highest courts do not require or have rejected. However, it strikes me that, within the wide sweep of their discretion there is room prior to committal to share information that, though not subject to a legal disclosure requirement, could be shared. It seems to me that if counsel for the Attorney General became aware of exculpatory evidence of unimpeachable authenticity and reliability – information that could undermine the presumptive reliability of the contents of the ROC and, therefore, justify a refusal to commit – they might well have an obligation to disclose that evidence to the person sought.Footnote 95 I would suggest that, even when relevant and potentially exculpatory evidence is not dispositive or does not meet the high threshold of being of unimpeachable reliability, it would be wise for counsel for the Attorney General to consider sharing that evidence, particularly in weak or marginal cases. The fact that the law does not require disclosure in such circumstances should not be the end of the analysis. Sharing information is not prohibited and would have the benefit, if nothing else, of enhancing transparency.

I want to use the distal prints comparison as an example. Counsel for the Attorney General and the requesting state both appreciated and articulated that a match would be determinative. It would eclipse all the other evidence, including the handwriting comparison. If the distal prints from Dr. Diab matched those on the arrest form it would have been powerful, conclusive and seemingly incontrovertible evidence that Dr. Diab and Panadriyu were one and the same person. It is apparent that counsel for the Attorney General recognized as much in the November 21, 2009, letter to France. My point is this: if that information was of such determinative value, if the prints matched, what was it if they were not a match or Dr. Diab could not be excluded as the maker of some of the lifted distal prints? A failed or an inconclusive result is not the equivalent of a positive match, but neither is it irrelevant. Could counsel for the Attorney General have shared the results pre-committal indicating it was doing so not as a legal requirement but as a courtesy or a discretionary call made in the particular circumstances of this case? Doing so would have enabled counsel for the Attorney General to offer its own take on what the comparison was or was not.

Recommendation #9

Counsel for the Attorney General advancing a case for extradition should consider sharing evidence – particularly relevant and exculpatory or potentially exculpatory evidence – even when they are not required or obligated to do so.

It was open to counsel for the Attorney General to indicate that such a gesture was not pursuant to any duty to disclose and should not be construed in that fashion. By not sharing, a lot of time was spent characterizing the comparison results as conclusive proof of Dr. Diab’s innocence, which they were not. The decision also fuelled an unfair perception that IAG counsel was perhaps hiding something. To be clear, there was no requirement for IAG counsel to share, and sharing may have raised a different set of questions but if, in the exercise of discretion and with France’s approval, counsel had shared the results, the IAG would have been seen as being both thorough and transparent.

It turns out the palm print comparison came to the attention of the defence before committal. However, it was open to the IAG to seize the high ground in the circumstances of the case and share the results of the palm print comparison in the fashion outlined above. The defence was aware that a palm print had been found. Dr. Diab had been asked for his palm print just as he had been asked for his distal prints. Everyone knew comparisons would be done. Given the circumstances of the case, sharing the information as a courtesy – and not as a legal requirement – would have been responsive to reasonable questions that arose on these facts. With the benefit of a decade of hindsight, I wonder whether this approach might have taken a bit of the edge off what was described by the extradition judge in his reasons for committal as follows:

This was a difficult case. It required an extraordinary amount of time to litigate. It was bitterly contested. Counsel represented their clients with passion and skill. They clearly believed in their respective causes. However, the heated exchanges between counsel and the appeals to emotion did at times serve to distract from the responsibility at hand.Footnote 96

The theme of DOJ counsel failing in their duties to disclose or to be candid about the replacement handwriting report, the palm print comparison and the distal prints comparison has been perpetuated – in my view unfairly. Counsel for the Attorney General acted in compliance with the law. When tested through a rigorous abuse of process application, twice over, the trial judge found no legal shortcomings and the conduct issues were not appealed further.

Leaving aside my thoughts on a different approach that could be taken with respect to sharing information with defence counsel, I conclude that these repeated accusations are unwarranted and have unnecessarily and unfairly tarnished the work done by DOJ counsel.

d. Delay

The extradition proceedings in the Diab case were unusually long and protracted. As part of my review, I considered ways to help expedite extradition proceedings. I appreciate that two opposing points of view inform this issue. The jurisprudence tells us that extradition should move in a timely fashion: it is not meant to turn into a trial. At the same time, the process must be imbued with fairness consistent with Charter values. Undue emphasis on efficiency and speed may threaten a fair process.

The complaints of our extradition partners invariably focus on delay: they say that extradition from Canada takes a long time. The Diab case certainly took a very long time, much of it in an exceedingly lengthy court proceeding that can be partially explained by the seriousness, age, nature and complexity of the case, the handwriting analysis journey and the role of intelligence information, among other issues.

The suggestions below arise from listening to the various stakeholders I consulted. They should be viewed as ideas that may help in the future as opposed to criticisms of the current system.

Case Management Power

The extradition judge did a magnificent job managing this very challenging case. As he noted, the parties were possessed of abundant skills and passion. There were unusual aspects not seen in most extradition hearings, such as a genuine issue regarding manifest unreliability, which ultimately led to the admission of defence evidence viva voce and documentary. There were serious issues related to the use of unsourced intelligence information in the ROC, which also led to defence evidence being admitted. There were also concerns and challenges related to translation and allegations of abuse of process.

Recommendation #10

The Department of Justice should consider initiating consultations with the judiciary and relevant stakeholders on the viability and desirability of creating case management powers for judges hearing extradition cases.

All that being said, Dr. Diab’s matter is not the only extradition case that has absorbed a great deal of court time. While the judge in this case was clearly on top of matters, I wonder if – given the trend to long extradition cases – there may be scope to recognize a more formal case management power in the Extradition Act.

In recent years, the Criminal Code has seen these powers added to contend with lengthening and/or complex trials and respond to the renewed focus that R. v. JordanFootnote 97 has placed on having trials proceed without unreasonable delay flowing from s. 11(b) Charter rights. The issue of case management has a richer history in Canada in civil cases. Certainly, the addition of case management powers in the Criminal Code has helped address an earlier culture of non-interference in criminal trials. Case management powers may assist with scheduling matters, length of arguments, length of materials and the like.

It was suggested to me that extradition cases could be given priority over other cases, but I am not sure that is practical. The importance of extradition cases vary. Some individuals facing extradition are granted bail. I know of no way to weigh extradition cases against, for example, domestic criminal cases. Besides, if we identify a number of different types of cases as priorities, sentiment will have to give way to reality. On the other hand, a formal case management power in extradition cases is neutral and has the advantage of focusing the task on narrowing issues and otherwise clarifying expectations. Of course, the viability of such a suggestion would require consultation, including with the judiciary.

Multiple Submissions at the Ministerial Stage

The submissions and surrender decision phase of Dr. Diab’s extradition proceedings was completed with minimal delay and as efficiently as possible in the circumstances: Dr. Diab was committed for extradition on June 6, 2011; his counsel made three sets of submissions to the Minister between August 24, 2011 and January 26, 2012; and the Minister rendered his decision on April 4, 2012.

The tasks of the judge and the Minister do not overlap, and the decision to order surrender involves different concerns than those considered by the judge at an extradition hearing.

In this case, the materials and arguments presented by Mr. Bayne in his second and third sets of submissions were largely responsive to new materials provided to him (for example, a memorandum on the French criminal law system) after the first set of submissions had been provided. I am advised, however, that it is not uncommon in other cases for the defence to forward multiple submissions to the Minister, and for these submissions to become repetitive.

Recommendation #11

Counsel for the person sought should only be permitted to make additional and supplementary submissions to the Minister on the issue of surrender when: new information has been disclosed or overwise come to light; or in situations where there has been a relevant change in circumstances.

Indeed, because the Minister of Justice has the power to amend a surrender order at any time prior to the execution of the order (s. 42), the person sought can make additional submissions to the Minister even after a surrender order has been issued. There are sound policy reasons behind the provisions of the Act that permit further submissions. As the Court of Appeal explained in Adam v. U.S.A. there “may often be a time lag between the Minister making a surrender order and its execution. If circumstances arise in that time frame which make a change to that order essential, a refusal to do so by the Minister may appropriately be the subject of judicial review.”Footnote 98

Of course, prudence would say that, even though extradition has already been ordered by the committal judge, the Department of Justice must stop the clock to study and advise the Minister on a recommended course of action. The tasks of the judge and the Minister do not overlap, and the decision to order surrender involves different concerns than those considered by the judge at an extradition hearing.Footnote 99 For example, the Minister must consider political and humanitarian issues that played no part in the extradition judge’s decision.

Still, common sense makes one wonder why, in the absence of a change in circumstances or new information or disclosure coming to light, multiple sets of submissions are necessary. At this point, the case has been going on for a long time. Many of the issues might be repeated. Issue may be taken with a Minister’s response. The defence can appeal the committal order and judicially review the Minister’s decision.

I wonder whether limiting in a firmer way the time during which the defence can make submissions or the number of times the defence can supplement submissions might expedite proceedings. Duplicative and repetitive submissions should be avoided. Limiting the permissible number of extensions on the statutory deadline to make submissions could also make the surrender stage more efficient and effective. Any such limitations would, of course, need to conform to the rules of procedural fairness and the language of the Act. As currently worded and interpreted, the Extradition Act declines to treat the concern for finality and the interest in an expeditious extradition process as a limit on the ability of the person sought to make submissions.

e. The Minister’s Decision and Transparency Concerns

Our courts have made clear that the Minister’s surrender decision is at the extreme legislative end of the continuum of administrative decision-making. It involves weighing many different factors and possesses a “negligible legal dimension”.Footnote 100 In determining whether to order surrender, the Minister must take into account the constitutional rights of the person being sought for extradition and also Canada’s international obligations and responsibilities to our extradition partners. As the Supreme Court has recognized:

The decision to extradite is a complex matter, involving numerous factual, geopolitical, diplomatic and financial considerations. A strong factor in one case may be a weak factor in another. This supports maintaining a non-formalistic test that grants flexibility to the Minister’s decision when faced with a foreign state’s request. The Minister of Justice has superior expertise in this regard, and his discretion is necessary for the proper enforcement of the criminal law.Footnote 101

Given the complexity of the considerations at issue, the Minister may, if not already doing so, seek advice from other ministries (e.g. the Department of Foreign Affairs) related to any diplomatic and human rights concerns associated with an extradition. It is difficult to know whether such efforts are already being pursued because so little information is known about the surrender process.

Currently, the public has very little access to information about the Minister’s surrender decisions in individual cases, like Dr. Diab’s, or even more generally.

The reasons for surrender (or – in far fewer cases – refusing surrender) are provided to the person sought but they are not publicly available. When the person sought makes an application for a judicial review of the surrender decision, the reasons form part of the application record and are included with the materials filed at the Court of Appeal. At times, portions of the reasons for surrender are summarized or excerpted in the Court of Appeal’s decision on the judicial review application. Beyond these brief glimpses, the content of the Minister’s reasons is largely unknown and inaccessible to the public. Given the highly personal nature of the information contained in the reasons for decisions (relating to, for example, illness or other hardships that might follow from extradition), it is understandable that decisions are not posted online. Regardless, there remains room to be more transparent.

Currently, the public has very little access to information about the Minister’s surrender decisions in individual cases, like Dr. Diab’s, or even more generally. There is a dearth of statistical information about the extradition requests Canada receives. How many requests are made each year? From which countries? In how many of these cases is an authority to proceed issued? What factors does the Minister consider in deciding whether to issue an Authority to Proceed? Of the cases in which an Authority to Proceed is issued, how many pass the judicial phase? In what percentage of cases where the person sought is ordered committed for extradition does the Minister order surrender? What are the most common reasons the Minister refuses to surrender someone for extradition? How frequently does the Minister seek assurances when ordering surrender? What types of assurances are sought?

Greater transparency requires more access to information.

The absence of any publicly available information about these matters may fuel public ignorance and, potentially, suspicion of the Canadian extradition system. The Department of Justice should consider providing public access to statistics about extradition cases, the policies and procedures that guide decision-making by counsel within the IAG, and summaries of the Minister’s decisions. Combined with the creation of a Deskbook, such measures may increase transparency and, ultimately, contribute to greater respect for and confidence in the system.

Recommendation #12

The Department of Justice should consider making available to the public: statistics about extradition requests made and received by Canada; the policies and procedures guiding decision-makers within the IAG; the factors considered by the Minister in making surrender decisions; information about the types of assurances sought by the Minister; and summaries of surrender decisions (while respecting privacy concerns).

As an example of the kind of information that could be made publicly available, I point to section 195 of the Criminal Code. This section of the Code requires the Minister of Public Safety and Emergency Preparedness to prepare and present to Parliament an annual report on the use of electronic surveillance to intercept private communications authorized under the Code. The report must include the number of applications for authorizations, the number of applications granted, and the number refused. It also includes information on the types of offences for which the authorizations are granted, the interception methods used, how often intercepted communications were entered as evidence at criminal proceedings and how often those proceedings resulted in convictions. The reports, which are available online, provide a measure of accountability and transparency while respecting privacy interests, privilege and secrecy considerations.

The Department of Justice should make a concerted effort to better educate the public on the objectives of extradition, the role the Department of Justice plays in the process and how the Canadian extradition system compares to that of other like-minded states. Greater transparency requires more access to information.

3. Are there specific concerns to be addressed with our foreign partner (France) with respect to Dr. Diab’s treatment after he was surrendered to France?

I begin by noting there is a significant information gap in relation to the time Dr. Diab spent in France. Very little is known about the investigations conducted by France after Dr. Diab’s surrender, the reasons for the decisions to release him on bail, the reasons those release decisions were overturned or the reasons Dr. Diab’s was eventually discharged prior to trial. I also have little information about Dr. Diab’s contact with or assistance from Global Affairs Canada while he was in France. In these circumstances, it is difficult to identify specific concerns about Dr. Diab’s treatment once surrendered to France or to recommend improvements.

Perhaps the most troublesome issue in Dr. Diab’s matter is that he was in jail for 34 months after his extradition by Canada – only to be freed by the investigating magistrates.

What is clear, even in the absence of specific details about Dr. Diab’s treatment in France, is that: he spent over three years detained in a foreign country without facing trial; and his extradition was preceded by a judicial finding in Canada that the case against him appeared to be weak. This troublesome reality is no doubt what was in the minds of our government leaders when comments were made that what happened to Dr. Diab should not have happened and should never happen again.

Below I attempt to review the delay that occurred following surrender and propose steps Canada could take to address this area of concern.

a. Delays in France Post-Surrender

Perhaps the most troublesome issue in Dr. Diab’s matter is that he was in jail for 34 months after his extradition by Canada – only to be freed by the investigating magistrates. In this post-JordanFootnote 102 world, much more emphasis is placed on ensuring that domestic criminal cases are dealt with in a manner that guarantees trial within a reasonable time. The time spent in custody in France is especially concerning given the comments made by the Ontario Court of Appeal, borrowing language from Ferras, that Dr. Diab, if extradited, would not languish in prison.

When Canada sent Dr. Diab back to France, it was understood that the investigation against him would continue but that France had initiated a prosecution against Dr. Diab. He was more than a mere suspect. It was also understood that Dr. Diab could apply for bail.

Dr. Diab did so. Eight times he was released on bail and eight times the order was reversed. Although the reasons for overturning the bail decisions are not available, there is some sense that the seriousness of the terrorism and antisemitic accusations coupled with the devastation of the bombing played a role – as may have the flight risk associated with Dr. Diab’s Lebanese citizenship. Given the allegations facing Dr. Diab and the evidence presented in the submissions opposing his surrender, it cannot have been unexpected to our Minister of Justice that Dr. Diab would be denied bail in France.

Recommendation #13

In every case, the Department of Justice should find out from the requesting state how long the person sought can be detained before a decision is made as to whether to refer the matter to trial and that information should be shared with the defence and provided to the Minister before a surrender decision is made.

In 2017 – years after Dr. Diab’s extradition – IAG counsel consulted French authorities and confirmed the fact that, in France, Dr. Diab could be held in detention for up to four years before a decision would be made as to whether to refer the matter to trial. Unfortunately, that information does not, however, appear to have been “on the radar” at the time the Minister made the surrender decision. To be clear, I am not at all certain that it would have had an impact on the Minister’s surrender decision given the seriousness of the charges and the state of the record.

Questions about how long the ongoing investigation and detention of Dr. Diab could last ought to have been asked much earlier. Information about the possibility of a lengthy detention before making the decision to refer the matter to trial would be relevant to the Minister’s calculus and ought to have been identified prior to ordering Dr. Diab’s surrender.

Going forward, this type of information should be gathered, shared with defence and provided to the Minister in the memorandum from IAG counsel. It provides additional, highly relevant context related to trial readiness and should be considered as part of the Minister’s surrender decision.

There is a general reluctance to second-guess foreign legal systems. The fact that Canada and France have signed an extradition treaty is a recognition that the French criminal justice system, while very different than ours, is one that will treat accused individuals fairly. One would not have thought of France as an unreliable partner or have anticipated an excessive delay. There are other countries whose human rights records are much more concerning. France’s constitution enshrines human rights and France is a member of the European Convention on Human Rights. I should also observe that while a 38-month delay prior to a serious and complex trial in Canada would be concerning, it is not always fatal – although taking 38 months to reach a preliminary hearing likely would be. What is different about Dr. Diab’s case is that, by the time he was extradited, France had over 30 years to be trial ready.

One explanation for the delay in France is that, when he first arrived in France, Dr. Diab apparently initially declined, as was his right, to make a statement. At some point, early in 2016, he apparently did speak to the investigating magistrate and raised that he was in Lebanon studying at the time of the bombing. That claim had to be investigated. It appears from media reports that a reason for discharging Dr. Diab from custody and dropping the charges was that the investigating magistrates were satisfied that Dr. Diab may have been studying abroad at the time of the bombing. The defence raised in France was not advanced in any formal way in Canada. That would be in accord with the law that defences, such as alibis, are matters for trial, that the committal judge should not be weighing evidence, and that the Minister does not consider the issue of guilt or innocence in making the surrender decision.Footnote 103

Recommendation #14

The Department of Justice should examine the issue of timely trials arising out of Dr. Diab’s experience with a view to determining whether the Canada-France treaty should be updated to specifically address issues of delay and timely proceedings.

What can we learn from the Diab matter in this regard? One suggestion that I have heard is that Canada could ask for assurances from France in future cases that involve serious, complex accusations. That is a possibility but it would be a challenge to fashion assurances as each case is so specific. The general rule is that assurances are requested only when not asking in a particular case would render the extradition unconstitutional.

The issue is not straightforward, although a partial remedy may be. I understand that treaties are reviewed periodically. In anticipation of these reviews, extradition partners regularly make notes and keep logs of issues, concerns and areas for potential improvement. Along these lines, Canada has – for good and sufficient reasons – negotiated clauses in some treaties that focus on time. For example, some treaties provide that the requesting state will ensure the person extradited is brought to trial within a specified period of time, failing which the person is to be brought to court for a trial date to be set and bail to be considered.Footnote 104 In other instances, treaties specify that the person extradited will be brought to trial expeditiously. Footnote 105 This is a more tempered solution. Such clauses give the requested state diplomatic leverage to press the other country.

Conclusion

Dr. Hassan Diab’s extradition to France and eventual release has rightfully sparked interest and debate on the extradition process, including decisions made by Canadian justice officials.

From the outset, this case has presented a deep tension between competing interests. On the one hand, France had a legitimate, lawful and significant interest in bringing the alleged author of a devastating, cruel, terrorist and antisemitic attack to justice. On the other hand, as Canadians, we have expectations that our citizens will not be extradited without due process, deprived of their liberty without a meaningful hearing or languish in a foreign jail.

Our Extradition Act, Mutual Legal Assistance in Criminal Matters Act, and the treaties thereunder provide the bridges between countries to fulfill mutual obligations. The intent of this review was, in part, to identify a series of recommendations that respond to the terms of reference, provide greater transparency in the process, and help build public confidence in the administration of our extradition and mutual legal assistance obligations.

Inviting this review is an indication of the government’s commitment to learning and continuous improvement. I am grateful to all who were generous with their time. I am especially grateful to Erin Dann of Toronto and Michele Meleras of Montreal, two highly capable counsel, who assisted me throughout the review.