Our extradition system is broken, and Hassan Diab is paying with his life

France has shown that in politically charged counterterrorism proceedings, it will hold a Canadian citizen in solitary confinement for years without charge or trial.
Photo: France's Supreme Court. Photo by patrick janicek/Flickr.
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An Ottawa professor caught in a 13-year legal battle that saw him under house arrest and then in a French prison now faces the possibility of a second extradition to France, despite recognition from Prime Minister Justin Trudeau that “what happened to him never should have happened.”

Today France’s Supreme Court ordered that Hassan Diab must stand trial for the 1980 bombing of the rue Copernic synagogue in France, going against four anti-terrorism judges and even the country’s Advocate General, who had argued for Diab’s release given the insufficient evidence in the case.

“Justice is not the scapegoating of a father, teacher, and beloved community member.”

Diab, a Canadian citizen, has been at the mercy of French counterterrorism laws and procedures since being accused of the bombing. He was arrested by Canadian authorities in 2008 in response to an extradition request by France and remained under house arrest while fiercely fighting the order for six years. He then spent three years in prison after being sent to France in 2014 before being released after rulings that the evidence against him was too weak to take to trial.

From the beginning, shaky evidence and procedural irregularities have plagued the case, and no physical evidence links Diab to the bombing. Charges were not laid until this past January.

Don Bayne, Diab’s lawyer, has called on the federal government to offer its assurances that Diab will not be extradited to France again. When Minister of Justice David Lametti was asked last week if he would provide assurances that Diab would not be extradited again, a spokesperson replied via email that “it would not be appropriate to provide further comment as the domestic proceedings in France remain ongoing.”

The Canadian government — which has been complicit in Diab’s arbitrary arrest and detention — has a responsibility to ensure he does not continue to face persecution, and to reject any pending extradition order from France.

Canada’s extradition treaty with France operates on the premise that France will uphold human rights. But France has demonstrated that in politically charged counterterrorism proceedings, it is willing to hold a man in solitary confinement for three years without charge or trial.

Canada should not be extraditing individuals in cases where there is insufficient evidence for conviction, and doing so only emphasizes how broken our extradition system is.

Pictured: Hassan Diab at a press conference in Ottawa on Jan. 17, 2018, following his return to Canada.

A decade in confinement

The prolonged investigation and detention of Diab has faced fervent criticism by civil and human rights organizations.

The process “has been marked by violations of important international human rights obligations with respect to arbitrary arrest and detention, fair trials, and ill treatment Hassan endured while held in solitary confinement,” stated Ihasaan Gardee, Amnesty International Canada’s director of programs and communications, at a May 12 press conference. Amnesty International was an intervenor in Diab’s extradition case before the Ontario Court of Appeal.

“Together we are steadfast in our support for Hassan and in our call for the end to this Kafkaesque ordeal that has played out in Canada and continued in France,” said Tim McSorley, national coordinator for International Civil Liberties Monitoring Group, which has launched an online tool to email Trudeau. Supporters are also signing a parliamentary petition calling on Canada to reject a second extradition appeal for Diab.

Terrorist bombings within France in recent years have led to a charged political climate where “civil human rights have been suppressed in the interest of prosecuting terrorist acts.”

French authorities connected Diab to the crime because he shares the name of a suspect identified by the French intelligence service. However, Diab’s name is very common (the current prime minister of Lebanon is also named Hassan Diab), and Diab maintains this is a case of mistaken identity.

He was extradited to France on the basis of the Bisotti report — a handwriting analysis of five block words on a hotel card used to link him to the bombing. Five handwriting experts from around the world criticized the report as “highly unreliable.”

Ontario Superior Court Justice Maranger stated in his June 6, 2011, ruling that the case against Diab was “weak,” the French handwriting analysis contained “conclusions that are suspect” and the “prospects of conviction in the context of a fair trial, seem unlikely.” But he ordered Diab’s extradition regardless, citing Canada’s extradition treaty with France.

On Nov. 14, 2014, Diab was sent to France without the opportunity to say goodbye to his pregnant wife and their two-year-old daughter.

Criticizing the merit of the extradition, Bayne described it as “wrongful,” noting it was “not for trial as legally required but for further investigation.”

Canadian complicity in an ‘unjust prosecution’

Important exculpatory evidence collected by the RCMP during Diab’s extradition hearings was never shared with Diab’s counsel or the courts hearing the extradition case, notes Bayne in a May 2021 memo.

The RCMP conducted a fingerprint analysis in coordination with France that “scientifically eliminated Diab as the source of all identifiable prints,” according to the memo. The analysis compared Diab’s fingerprints to the fingerprints of the person suspected of the bombing, which are found on a police statement from 1980 that was handled by the bombing suspect while under arrest for shoplifting.

From 2014 to 2018, Diab was held in a maximum-security prison in France without charge, largely in solitary confinement. From May 2016 to November 2017, four anti-terrorism investigative judges issued eight release orders for Diab, based on evidence that he was studying and writing sociology exams in Lebanon during the dates the bomber was believed to be in Paris.

Each of these release orders was overturned by France’s Court of Appeal.

Diab was finally released from prison by counterterrorism investigative judges in January 2018, following a notice that the investigation into him was closing.

The Court of Appeal’s decision to go against the investigative judges’ ruling in a terrorism matter, and order that Diab be charged and face trial, is unprecedented, according to French newspaper Le Monde.

This is not the only exceptional development in Diab’s legal proceedings.

The Advocate General of France — who presented the case on behalf of the prosecution at the Supreme Court level — adopted the position of the defence that the Court of Appeal decision should be overturned.

“The case of the unjust prosecution of an innocent man — determined by the French investigation itself — continues,” Bayne said.

Pictured: Prime Minister Justin Trudeau and David Lametti, minister of justice, at Rideau Hall Nov. 20, 2019.

An onslaught of lobbying

Diab’s legal case has been politically charged. The tragic 1980 synagogue bombing, which killed four people and left 40 injured, was the first fatal antisemitic attack France had seen in 35 years. When Diab was announced as a suspect, 23 organizations, including victims’ rights groups, petitioned for his extradition and trial.

Bayne said that following Diab’s extradition to France, certain media outlets portrayed Diab as guilty. “Some of the major media in France had announced that ‘the terrorist’ had arrived on French soil,” he was told.

Terrorist bombings within France in recent years have led to a charged political climate where “civil human rights have been suppressed in the interest of prosecuting terrorist acts,” Bayne said.

“The climate is so pro-prosecution of anything to do with alleged terrorism. it’s almost as though the normal rules of the game have been suspended.”

Its extradition treaties operate on the disproved assumption that partnering nations respect the human rights of foreigners, to whom they have no accountability.

Five French civil society organizations presenting as parties before the court petitioned the French appeal court to overturn the decision to release Diab. Among them were the Union libérale Israélite de France — the religious community of the Copernic Synagogue — and the Association française des Victimes du Terrorisme, which engages as a civil party in terrorism cases and seeks to prevent all forms of terrorism with a focus on fighting “barbarism” and “jijadist” terrorism, according to its website. The groups who appeared before the court “have been lobbying long and hard for continued prosecution, even arguing at one point that, ‘Okay, the evidence is so weak, he’s likely to be acquitted at trial. But we want a trial anyway,” said Bayne.

“The victims and the survivors of the Rue Copernic bombing deserve justice,” said McSorley. But justice is not the scapegoating of a father, teacher, and beloved community member.”

The call for reform

Canada’s extradition system is broken.

Its extradition treaties operate on the disproved assumption that partnering nations respect the human rights of foreigners, to whom they have no accountability. And racialized individuals are facing the brunt of this systemic violence across criminal justice systems, especially in the face of state counterterrorism measures.

Diab’s ongoing legal saga has been accompanied by calls from academics, human rights advocates, and extradition experts to reform Canadian extradition law.

“What happened to Hassan has laid bare the fundamental flaws in Canada’s extradition system,” said McSorley.

In his 2011 ruling, Justice Maranger concluded that Diab’s extradition hearing was not meant to be “a hearing regarding the guilt or innocence of Mr. Diab.”

“It is presupposed, based on our treaty with France, that they will conduct a fair trial, and that justice will be done,” he established. But France’s recent track record on civil rights — principally the right to be free from arbitrary arrest or detention — has been disputed.

The Ontario Court of Appeal said in its 2014 decision that “the record in this case clearly demonstrates that the appellant, if extradited, will not simply ‘languish in prison.’”

But “of course, the opposite happened,” said Bayne.

McSorley is critical of Canada’s low threshold for evidence in the extradition system. “In 2014, the judge presiding over Hassan’s extradition stated that the evidence over him was illogical, very problematic, and convoluted. And it presented little chance of conviction.”

“But the judge’s hands were tied because of Canada’s permissive extradition laws,” he pointed out.

He said that extradition experts have presented “concrete proposals” to reforming the extradition system.

“The road map is there. The government just needs to follow it.”

The federal government’s recent changes to extradition procedures have been shallow at best. We need fundamental reforms to ensure no one living in Canada experiences the ordeal Diab has had to face. It would be unjust to extradite Diab yet again.

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