ANALYSIS: Diab case exposes dangerous flaws in Canada’s extradition process

In 2008, French prosecutors asked a Canadian court to extradite Hassan Diab, a Canadian then teaching sociology at Carleton University in Ottawa. French authorities believed Diab, who was born in Lebanon but became a Canadian citizen in 1993, was somehow connected to the 1980 bombing of a Paris synagogue, a bombing that killed four and wounded many others.

I say “somehow” connected because French prosecutors then, in 2008, and ever since have not only failed to provide convincing evidence of Diab’s involvement, they have failed to even charge him with a crime.

Nonetheless, with scant evidence and no charge against Diab, a Canadian judge, Justice Robert Maranger, in 2011 “reluctantly” granted Diab’s extradition request. In granting the request, Maranger noted that the evidence presented by France in support of the extradition was “convoluted, very confusing, with conclusions that are suspect.” He also said that “the prospects of conviction in the context of a fair trial seem unlikely.”

And yet, two years later, in 2014, Diab would be extradited to France with the approval of the justice minister at the time, Rob Nicholson.

“That’s pretty shocking, I think,” said Alex Neve, the former head of Amnesty International in Canada and now a senior fellow at the University of Ottawa, where he continues his work advancing human rights causes. “(It) should be troubling for any Canadian to know that the bar in our own laws is so low that any nation that shows up with practically no evidence at all can nonetheless seek our extradition and succeed.”

Diab’s lawyer, Don Bayne, has been saying the same thing for years now and was doing so again this week.

“The low threshold required for a foreign state to terminate the liberty of a Canadian and have the Canadians sent to them in custody is very low, shockingly low,” Bayne said.

Diab would spend three years in a French prison, much of that time in solitary confinement, while French prosecutors tried to build the case against him. But in 2018, with those prosecutors having failed to provide enough evidence to even charge him with a crime, a French court ordered him released and he returned to Canada.

But the nightmare for Diab is not over. This week, the highest court in the French judiciary overturned that 2018 decision and a new trial date for Diab may now be set.

“The family is devastated,” Bayne said Wednesday. “What is particularly hurtful is these decisions keep coming without evidence to support them. And this is the result of lobbying — a hue and cry in Paris — that the victims (of the 1980 bombing) deserve a trial. What the victims don’t deserve is an innocent scapegoat to be served up to them.”

“It was a horrific terrorist crime for which there absolutely must be justice and accountability,” Neve said. “And it is an absolute disgrace that 40 years later, that hasn’t happened. You do not deliver justice by delivering up a man against whom every single shred of evidence increasingly points only to innocence and not to guilt.”

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And if France wants Diab in the dock when and if his trial in France starts, it will, once again, have to ask Canada to extradite him.

The request will first go through a judicial process here in Canada, as it did in 2011, but, also as it did before, a decision to extradite will eventually end up on the desk of the Canadian justice minister of the day.

This time, though, the federal government must demand that France finally provide the kind of evidence that would lead a Canadian jurist to conclude the “prospects of conviction” would seem likely. It’s time for France to put up or shut up.

“This has been a case that’s been ‘before the courts,’ either in Canada or France, for nearly 14 years now,” Neve said. “And the courts have failed to deliver justice at every single turn through two levels of courts in Canada and through three levels of court now in France. And there comes a point where enough is enough and it’s human rights and justice that have to take precedence.”

In any event, Canada should reject all extradition requests until France is willing to engage in some reciprocity in this regard. You may be surprised to learn that the extradition treaty Canada and France signed confirms the French policy that French nationals will simply never be extradited.  If a French citizen commits a crime here and then flees back to France, France will do nothing to secure that individual’s return to face a trial in Canada. That’s right: Canada-France extradition is a one-way street — from Canada to France.

And then beyond that, the Trudeau government should finally do what many have been pressing Ottawa to do for years — reform Canada’s own extradition laws so that any foreign government petitioning for the extradition of a Canadian be required to present the kind of strong evidence normally required in Canada when prosecutors in Canada want to proceed with a criminal trial.

Until such reforms are introduced, Canadians are exposed to arbitrary decisions by foreign courts, which leaves Canadian judges, as it left Maranger in 2011, with little choice but to commit Canadians to overseas judicial processes that do not match Canadian standards of justice and fairness.

In 2018, about six months after Diab had returned to Canada, Prime Minister Justin Trudeau was asked if he would call an inquiry into Diab’s case. He would not do so, but he did tell reporters then that, “I think for Hassan Diab, we have to recognize first of all that what happened to him never should have happened,” and that Canada has to “make sure that this never happens again.”

Trudeau may soon have the chance to prove the worth of those words.

David Akin is chief political correspondent for Global News.