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August 30, 2010: Court Date for Abuse of Process Application
We urge you to come to the Ontario Superior Court, located at 161 Elgin Street in Ottawa, on Monday August 30 at 10:00 AM, to show your support for Hassan.
On August 30, Hassan’s lawyer will file an abuse of process application. The application will detail how the French investigators and the Crown Attorney have continued to rely on flawed handwriting “evidence”, even after learning that handwriting samples alleged to have been written by Dr. Diab were actually written by someone else.
The extradition law and the public’s confidence in the administration of justice rest on trust that the requesting state will only submit reliable evidence to Canadian courts. However, this has not happened in Dr. Diab’s case. The French investigators and the Crown attorney continued to rely on “evidence” that they knew is fatally flawed.
Please come to court to show your support for due process and fundamental principles of justice!
To find the courtroom number, simply check with the information desk staff or look up Hassan’s name on the sheet posted on each courtroom door.
June 18, 2010: Dr. Diab must continue to wear and pay for electronic monitoring device
This week, defence attorney Mr. Don Bayne asked the court to remove the condition of electronic monitoring imposed on Dr. Diab since March 31, 2009. In his argument, Mr. Bayne noted the following significant developments in the extradition case.
- The case is demonstrably weaker than it appeared in March 2009, particularly after France disavowed its own handwriting reports. A defence expert is allowed to testify about the manifest unreliability of unsourced secret intelligence upon which the case is founded.
- Lengthy delays and the collapse of extradition hearing dates in January and June, 2010, have been caused by the Crown Attorney’s adjournment requests. This situation has been highly prejudicial to Dr. Diab, who must pay $30,000 for the first year and $18,000 each year thereafter for electronic monitoring.
- During an unsuccessful bid to challenge Dr. Diab’s bail in June 2009, the Crown Attorney described the electronic monitoring as adding “little” to the release plan.
- Dr. Diab has faithfully adhered to all conditions of his very strict release plan.
The Crown Attorney opposed the defence’s request to remove electronic monitoring. Incredibly, he blamed the delays on the defence, saying that Mr. Bayne should have alerted the Crown to the manifest unreliability of France’s handwriting evidence.
The Crown also took issue with the claim that the case against Dr. Diab is weaker now. Last month, the French replaced their discredited handwriting reports with a new report. The Crown urged the court to overlook previous criticisms of the disavowed handwriting reports and regard the new handwriting report as presumptively reliable. The Crown characterized Dr. Diab’s faithful adherence to the bail conditions as “irrelevant”.
On June 18, Justice Maranger ruled that Dr. Diab must continue to wear the electronic monitoring device and shoulder the entire cost. The court stated that the GPS monitoring device is necessary to alleviate the risk of flight.
The defence plans to bring an abuse of process application against France and the Crown during the week of August 30 in relation to the handwriting “evidence”. A new date of November 8, 2010, was set for the extradition hearing.
May 17, 2010: France Withdraws Discredited Handwriting Reports; Extradition Hearing Delayed Yet Again
After standing by the handwriting reports of two French “experts” for more than 18 months, the Crown Attorney announced in court today that France is withdrawing those reports. The reports compared just five words written on a Paris hotel registration card in 1980 with other documents purportedly written by Dr. Hassan Diab.
The move to abandon the handwriting reports came after top handwriting experts for the defence demonstrated that the French handwriting reports are fundamentally flawed, and after the Judge ruled that defence experts would be allowed to testify at the extradition hearing.
Up until quite recently, the Crown Attorney had (unsuccessfully) fought tooth and nail to prevent the defence from calling its own handwriting experts to challenge the French handwriting analysis.
In an effort to salvage the case against Dr. Diab, the Crown Attorney announced that France will file a new handwriting report which claims to reach the same conclusion as the discredited reports.
Calling France’s latest move “absolutely scandalous”, defence attorney Mr. Don Bayne remarked that “at the 11th hour and 59th minute they withdraw their entire handwriting case and substitute a new case”. He noted that this is the second time that France’s actions have disrupted the court schedule and further delayed the extradition hearing.
Mr. Bayne noted that despite repeated inquires from the Judge, the Crown Attorney kept the court and the defence in the dark and gave them the false impression that France was ready to commence the extradition hearing in June 2010. Mr. Bayne announced that the defence will challenge the reliability of the new handwriting report and – at an appropriate time in the future – may also file an abuse of process application.
Mr. Don Bayne described the process as a “war of attrition” against Dr. Diab, who has exhausted all of his resources, and must retain the services of experts once again to demonstrate the manifest unreliability of the new “evidence”.
The Crown Attorney indicated that he will oppose any attempt by the defence to call experts to challenge the reliability of the new report. He also announced that the French authorities have recently re-interviewed a witness who had an encounter with the suspect 30 years ago, and that this witness made some comments upon being shown photos of Dr. Diab.
Dr. Diab remains under very strict bail conditions, is unable to find work after his unjust dismissal from Carleton University, and has to pay $1,500 a month for a GPS monitoring device in addition to his legal expenses.
See also: “Hearing on Diab extradition faces new delay”, Ottawa Citizen, May 18, 2010
March 29, 2010: Again, No Change in Status
Today, and for the third time, Crown Attorney Claude LeFrancois was supposed to update the court regarding the status of the French case against Dr. Hassan Diab. However, the Crown stated, “The status has not changed between now and last time. There may be evidence called. There may not be.”
Defence attorney Don Bayne argued that the Crown should provide more details, since France has had more than five months to consider the defence evidence. Mr. Bayne also argued that it would be prejudicial to the extradition hearing if new evidence is submitted at the 11th hour. The defence may need time to consider any new submission, and travel arrangements for defence experts will be thrown into disarray.
Mr. Bayne objected to the Crown’s “unilateral control of the process”, and argued that Section 4 of the Extradition Act cannot be misused by the Crown and France. Otherwise, this will lead to an “abuse of process”.
Justice Maranger pressed Mr. LeFrancois for more details. However, the Crown Attorney replied “we are at a loss”, and again reiterated that there may be new evidence, and there may not be. The Judge decided to proceed with the June extradition hearing, and stated that he will deal with any potential supplement to the Record of the Case as it arises.
Mr. Bayne informed the court of the defence’s decision to abandon the application to shift the cost of the GPS monitoring to France or the Crown Attorney, since the legal fight will be costly. However, the defence reserved the right to revive the application if France asked for further adjournment.
February 12, 2010: Extradition Hearing Set for June
Today, the parties involved in the extradition case of Dr. Hassan Diab agreed to begin the extradition hearing on June 14, 2010. Hassan’s lawyer, Mr. Don Bayne, confirmed that defence experts are available to testify in June. However, the date is contingent on whether France submits any “new” evidence. Assistant Crown Attorney Claude LeFrancois should report by March 29 whether French authorities intend to submit any additional evidence.
The Crown tried to require that the defence disclose any additional defence evidence by March 29, but the court rejected this request as the law allows the defence time to challenge the reliability of any “new” evidence submitted by France.
Earlier in the week, Mr. Bayne had objected to the Crown instructing a translator to replace the word “intelligence” with “information” in the Record of the Case. Today, Justice Maranger agreed that the Crown’s instructions “tended to cross the line”, but decided that they do not amount to an attempt to gain an advantage since what matters is not the word “intelligence” or “information” but rather the source of the allegations.
On April 6, Mr. Bayne will argue in court that it is unfair for Dr. Diab to bear the burden of paying for the GPS monitoring ($2,500 per month) because the extradition hearing has been delayed at the request of France and the Attorney General of Canada. Mr. Bayne will ask the court to either shift the cost to France (through the Attorney General) or remove the GPS monitoring. The Crown indicated he will oppose such a request.
February 8, 2010: Extradition Hearing Further Delayed
Today, the parties involved in the extradition case of Dr. Hassan Diab met in court to hear from Assistant Crown Attorney Claude LeFrancois. The extradition hearing was originally set to begin in January 2010, but was postponed to allow France time to consider new evidence submitted by the defence.
Mr. LeFrancois informed the court that he is “in no better position than before” to tell the court if France intends to call new evidence to support the extradition request. The Crown stated that he prefers not to set a date for the extradition hearing.
Defence attorney Donald Bayne voiced strong objections to further delay. Mr. Bayne asked, “Does France have a greater status than a Canadian citizen in Canadian law?” Mr. Bayne reminded the court that French authorities have had 29 years to prepare their case, and supposedly have been ready to begin the extradition hearing since November 2008; the Crown’s previous insistence on the need to move expeditiously “rings hollow”. In light of the delay, Mr. Bayne will ask the court to either shift the burden of paying for GPS monitoring ($2,500 per month) from Dr. Diab to the state, or remove the GPS monitoring altogether.
Justice Robert Maranger expressed concern that the Crown’s delays are “wreaking havoc” with the court’s schedule. “We have a Canadian citizen under strict bail conditions waiting around to see what happens. I don’t want to see that happen.” The Judge asked the Crown to clarify whether France intends to submit additional evidence, but the Crown was not able to give a definite answer.
The parties also spent considerable time debating the translation of the Record of the Case (ROC) from French to English. The Crown has so far produced five English versions of the ROC since February 2009. Mr. Bayne argued that the Crown violated protocols set down by the Judge for revising the English translation. He accused the Crown of attempting to “sanitize” the translation by instructing the translator to replace the word “intelligence” with “information”. The Crown started doing this after the Judge ruled that the defence may call evidence showing the inherent unreliability of using intelligence as evidence. Mr. Bayne cited case law showing that neither party may take on the role of translator. The Judge ruled that the Crown must provide a list of all changes that have been made to the English translation of the ROC since the first version.
The Judge set the date of March 29 for the Crown and France to report back to the court about their plans to submit additional evidence. The earliest date for the extradition hearing is likely to be June 2010. The parties will reconvene on February 12 to determine if they can confirm dates in June.
December 18, 2009: Extradition Hearing Delayed for Months
Today, Assistant Crown Attorney Claude LeFrancois (representing the Attorney General of Canada) sought an adjournment of the extradition hearing originally set to start on January 4, 2010. The Crown’s stated reason for requesting an adjournment of at least several months is to allow French authorities time to review evidence Dr. Hassan Diab’s lawyer intends to call and to “consider whether and what evidence they may want to submit to supplement the record of the case”. The Crown’s request was prompted by the defence obtaining the court’s permission to call expert witnesses to testify during the extradition hearing regarding the inherent unreliability of France’s evidence.
Defence attorney, Mr. Donald Bayne, strongly opposed an adjournment, arguing that:
- The French have had more than 28 years to prepare their case.
- The Crown is unable to offer a valid reason for adjournment; it is a “signal of desperation at the 11th hour without a compelling reason”. Mr. Bayne summarized the Crown’s argument as: “We have no [new] evidence, we don’t know if we will have evidence, but we want a lengthy adjournment”.
- Dr. Diab, who has not been found guilty of any crime, has endured more than 4½ months in jail followed by nearly 9 months under bail conditions that severely limit his freedom. Moreover, the GPS device he must wear places an undue financial burden on him and his spouse. The GPS equipment costs more than $2,500 CAD per month, and Dr. Diab has been unable to find employment since he was dismissed from his job at Carleton Univeristy, without just cause and despite the public outcry.
Up to now the Crown has pushed relentlessly for the extradition hearing to commence at the earliest possible date.
The Crown disputed the defence argument that the case has been 28 years in the making, claiming that the French achieved a “breakthrough” in the case in 1999. [In fact, this “breakthrough” is based solely on unsourced, secret foreign intelligence, which the French investigators themselves admit is of unknown sources and reliability.] The Crown further claimed that, unlike the defence, the Attorney General of Canada is permitted by extradition law to seek an adjournment without offering any evidence to support the request.
Justice Robert Maranger ruled that the extradition hearing will be adjourned, and the parties will reconvene on February 8, 2010. At that time, the Crown must update the court on the status of the French efforts and a new date may be set for the extradition hearing. The earliest possible date for the hearing will be the end of May.
December 11, 2009: Evidentiary Hearing – Oral Decision
Today, Justice Maranger rendered his oral decision regarding the admissibility of the defence evidence at the extradition hearing. He ruled the following:
The defence is permitted to file reports from all four handwriting experts, and can call any two of these experts to testify at the extradition hearing. The Crown will be allowed to cross-examine all four of the experts if he so chooses.
The defence may call University of Toronto law professor Kent Roach to testify as an expert on the issue of intelligence as evidence at the extradition hearing.
The defence will not be allowed to rely on the testimony of an RCMP corporal regarding the issue of intelligence as evidence.
The admissibility of materials submitted by French investigators to Canada in support of the search warrants will be decided later, in the context of the extradition hearing.
[For the record, These materials contain numerous and significant contradictions when compared with the Record of the Case, thereby demonstrating the inherent unreliability of the case against Hassan and the malleability of secret intelligence.]
At a later date, the Judge will provide his decision and the reasons behind it in writing.
December 10, 2009: Evidentiary Hearing – Day 5
Today, Assistant Crown Attorney Claude LeFrancois resumed his arguments in the Superior Court opposing evidentiary submissions by Hassan’s lawyer, Mr. Don Bayne. Mr. LeFrancois reiterated his position that Hassan’s lawyer should not be allowed to call expert evidence at the extradition hearing to refute the allegations of the French authorities.
The Crown put forward the following claims:
- Conceding again that he does not know of any criminal cases in Canada involving the use of intelligence as evidence, the Crown argued that secret intelligence is an adequate basis for denial of liberty and committal for extradition.
- Defence evidence challenging the use of intelligence should be limited to oral and written submissions; no expert witnesses should be allowed to testify regarding the inherent unreliability of intelligence.
- Statutory law obligates the extradition Judge, Justice Robert Maranger, to consider intelligence as evidence because of the presumptive reliability of such material when submitted by a foreign state with which Canada has an extradition treaty. The Crown went even further arguing that the ultimate reliability of the French material is not for the Judge to consider.
- It is reasonable to infer that Hassan authored the handwriting specimens. Expert evidence by the defence showing that the specimens were written by someone else is merely competing opinion. The extradition Judge should give more credence to the work of France’s handwriting analysts.
[For the record, four of the world’s renowned handwriting experts gave scathing assessments of the work of the French handwriting analysts. The experts also provided conclusive evidence that refutes the French handwriting analysts’ assertion that the specimen were authored by Hassan Diab.] - Handwriting experts should only be called if their evidence results in the “complete rejection” of the French handwriting analysis. The only way for the defence to render the French handwriting evidence inadmissible would be for France’s handwriting analysts to deny that they authored their own reports.
- It is not within the extradition Judge’s purview to consider whether the French handwriting analysts were biased or lacked objectivity. The function of the Judge in an extradition hearing is quite modest.
In his final response, Mr. Bayne took issue with the Crown’s attempt to characterize the Judge as merely a “rubber stamp” who, upon being presented by the Attorney General with a Record of the Case certified by a foreign state, must commit the accused for extradition. Mr. Bayne stressed that foreign evidence is subject to Canadian evidentiary standards with respect to threshold reliability. Furthermore, the Canadian Charter of Rights and Freedoms applies to the accused. It is Canadian law – not the law of a foreign state – that governs tests of reliability and sufficiency.
The Judge will render his decision regarding the admissibility of defence experts on Friday, December 11.
December 3, 2009: Evidentiary Hearing – Day 4
Today, Assistant Crown Attorney Claude LeFrancois and his assistant, Matthew Williams, argued that Dr. Hassan Diab’s lawyer, Mr. Don Bayne, is attempting to turn the extradition hearing into a trial-like process. The Crown argued that the role of the Canadian court is to expedite extradition to the requesting state; allowing the defence to challenge the reliability of the French evidence will prolong the process.
The Crown characterized Mr. Bayne’s proposed handwriting experts – who provide conclusive evidence that at least three documents used for comparison purposes were not written by Hassan – as merely competing opinion. The Crown argued that the evidence in the Record of the Case is presumed reliable and therefore should not be tested at the extradition hearing.
According to the Crown, none of Mr. Bayne’s expert witnesses should be allowed to present evidence at Dr. Diab’s extradition hearing. Conceding that the evidence against Hassan is “entirely circumstantial”, the Crown argued that no matter how weak the evidence is, and regardless of how compelling the proposed expert testimony discrediting handwriting and intelligence will be, the extradition Judge should move “expeditiously” to commit Hassan for extradition.
The Crown argued that Canada is bound by its extradition treaty with France and is obligated to extradite. Evidence about the lack of procedural fairness in the French legal system is beyond the scope of an extradition hearing since it is presumed that the accused will receive a fair trial. The Crown also argued that it is up to the Minister of Justice – not the Canadian court – to determine whether it is fair to extradite.
The Crown admitted that Dr. Diab’s case is unique in the sense that he has not seen an extradition case, or, indeed, a criminal case, that admitted intelligence as evidence. Nonetheless, he argued that, because “intelligence sometimes gets it right,” it should be allowed as courtroom evidence. This is despite the fact that in the previous day’s session, Mr. Bayne cited a British Parliamentary report stating, “Canadian prosecutors… were horrified at the suggestion that [intelligence] material could be used as evidence for the prosecution at the trial. This would be contrary to the Charter of Rights.”
The Crown also argued that extradition does not operate on the principle of the presumption of innocence. By contrast, when Hassan was granted bail in April of this year, Justice Maranger noted that Hassan is entitled to the presumption of innocence. Furthermore, the Ontario Court of Appeal affirmed Hassan’s right to the presumption of innocence when it upheld the bail decision.
The evidentiary hearing will resume next Thursday, December 10, and may end on that day or extend into part of the following day (Friday). Mr. Bayne, Dr. Diab’s lawyer, will have an opportunity for final rebuttal. The Judge is expected to render a decision on the admissibility of defence evidence later this month. The extradition hearing is scheduled to begin on January 4, 2010.
December 2, 2009: Evidentiary Hearing – Day 3
Today, Mr. Don Bayne, Dr. Hassan Diab’s lawyer, continued his presentation at the evidentiary hearing. He noted that the French Record of the Case makes extensive use of bald and conclusory statements derived from unsourced intelligence. This intelligence is inherently unreliable and dangerous to rely on as evidence. The circumstances in which this intelligence was compiled are completely unknown, including whether it was obtained under torture. It is impossible to assess the reliability of this information.
Mr. Bayne referred to reports produced by Canadian Royal Commissions in the cases of Maher Arar (the O’Conner Report), and Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nurredin (the Iacobucci Report). Each of these individuals was imprisoned and tortured in the Middle East based on faulty intelligence from Canadian and other Western intelligence agencies.
References were also made to the cases of Mohamed Harkat and Adil Charkaoui, two men living in Canada who have been the subject of security certificates based on intelligence information to which neither man is able to respond because they had no basis for knowing the sources or reasons for being labeled as terrorists.
In today’s court session, Mr. Bayne focused on five reports submitted by experts in matters related to the use of intelligence as evidence in a court of law. All these experts raise serious concerns about the use of intelligence in courtroom proceedings.
Here are some highlights of the experts’ reports.
Jacqueline Hodgson is a Professor of Law at Warwick University in the United Kingdom and has conducted extensive research on the French legal system. She was commissioned in 2005 by the UK Home Office to advise the British government on the possibility of adopting the French magistrate system for the investigation and prosecution of terrorist suspects. Hodgson concluded that, whilst intelligence is used as evidence within the French criminal process, this “poses insurmountable problems”. Intelligence is not produced for judicial purposes, nor to evidentiary standards. It exists as a set of “bald conclusory assertions” that cannot be tested in court.
Kent Roach is a Professor of Law at the University of Toronto who has done extensive research on the roles of intelligence and evidence in terrorism investigations. Mr. Roach warns that courts must be very cautious about relying on intelligence because it is collected for fundamentally different purposes and under different rules than evidence. According to Professor Roach, “A secretive intelligence-driven process is utterly incompatible with the demands of evidence, due process, the presumption of innocence, and proof of guilt… Unsourced conclusions of unknown reliability cannot and should not be used as evidence to impose serious consequences on people.”
Thomas Quiggan is a Senior Research Fellow at the Canadian Centre for Intelligence and Security Studies at Carleton University with more than 20 years of practical intelligence experience in a variety of positions including the RCMP, the Canadian Armed Forces, and the International War Crimes Tribunal. Professor Quiggan notes that “intelligence cannot be reliably used as evidence in a common law court, since the intelligence process as a whole has inherent problems of reliability… Intelligence which relates to terrorism is political in nature, and the investigations and intelligence that are connected to terrorism tend to be subject to greater political pressures than many other issues.”
Wesley Wark is Professor of History and International Relations at the University of Toronto. He has authored several books and provided testimony to the Canadian Parliament on intelligence and national security. In the words of Professor Wark, “The French intelligence case [Rue Copernic] cannot be tested and must be regarded as manifestly unreliable as evidence in a judicial proceeding. It would be dangerous to rely for evidentiary purposes on a secretive and mysterious intelligence process that produced an early hypothesis about the genesis of the Rue Copernic attack based entirely on foreign sources, that went cold for 15 plus years as the French authorities pursued ‘fruitless’ leads, and that was resurrected in 1999 on the basis of new intelligence, from an entirely unknown source, that the DST itself judged as no more than ‘at least likely.’ To deprive an individual of his liberty on the basis of such material would be manifestly unjust.”
Stephane Bonifassi is a leading member of the Paris bar and an expert witness in French extradition cases. Mr. Bonifassi confirms that intelligence is regularly used as a basis for conviction in terrorism cases in France. French law makes no distinction between evidence and intelligence, and it is particularly difficult for a defence lawyer to challenge such intelligence.
Mr. Bayne also cited Justice Zinn in the case involving Mr. Absoufian Abdelrazik, “It is a fundamental principle of Canadian and international justice that the accused does not have the burden of proving his innocence, the accuser has the burden of proving guilt.” This is relevant because when unsourced intelligence is used it is not possible to refute it.
Towards the end of his presentation, Mr. Bayne gave several examples of blatant contradictions in the French materials submitted in the case against Dr. Diab. These contradictions show the malleability of intelligence.
When the hearing resumes tomorrow at 10:00 AM, Assistant Crown Prosecutor Claude LeFrancois will respond to Mr. Bayne’s submissions.
December 1, 2009: Evidentiary Hearing – Day 2
Today, Mr. Don Bayne, Dr. Hassan Diab’s lawyer, continued his presentation at the evidentiary hearing. In today’s court session, he focused on four reports submitted by internationally recognized forensic document examiners. All four experts are highly critical of the handwriting analysis performed by two French analysts, who compared five words written on a Paris hotel registration card with other documents purportedly written by Dr. Diab.
The four experts all agree that the French handwriting analysts failed to adhere to widely recognized professional standards and committed major errors. Examples include using comparison specimens contaminated with writings from another person, and using portions of the hotel registration card that were completed by the hotel clerk rather than the suspect (in violation of the French magistrate’s explicit instructions).
Here are some highlights of the experts’ reports.
Brian Lindblom, a leading writer in Canada on forensic document examination and an expert on Write-On handwriting comparison software, stated “It is unreasonable to expect any qualified examiner would reach such a finding using the same materials provided… The approach employed deviates significantly from established methodologies in the field of forensic document examination.”
Dan C. Purdy, the leading handwriting expert in Canada who has worked for 30 years as a scientist in the Royal Canadian Mounted Police (RCMP) forensic laboratories, said “As someone who has many years experience dealing with competency and quality control issues, I am very critical of the way the [French analyst] conducted her examination and find her results highly unreliable.”
Robert W. Radley, who is a leading expert on handwriting in the United Kingdom and an esteemed international expert, stated “I find the [French analyst’s] work wholly unreliable, unreasonable and unacceptable and consider she did not complete this report to the standards expected from a competent forensic document examiner.”
John Paul Osborn, a leading American handwriting expert and the single most famous name in the field of forensic document examination, noted that the flaws in the French analyst’s report represent “a flagrant and manifest deviation from established methodologies for the examination of writing and the reporting of findings. This report discusses the attempted resolution of a difficult problem of identification; the simplistic printing of only five words. To ignore the most basic of protocol, with respect to a problem of this nature, is as dangerous as it is erroneous.”
Mr. Bayne pointed out that the experts’ reports do not simply present a competing opinion. Instead, they are technical reviews of the French handwriting analysis that show fundamental flaws and frailties in the Record of the Case. Allowing Hassan to be extradited on the basis of such profoundly flawed evidence would establish a new low point for the Canadian legal system.
The extradition hearing would be the only opportunity Dr. Diab gets to have the evidence heard, since French courts are extremely critical of defence-appointed experts. Mr. Bayne said “the extradition Judge is the sole protection a person has against being snatched and sent to a foreign jurisdiction where his liberty will be denied.”
Towards the end of the day, Mr. Bayne turned his attention to the intelligence material, stating “this is an exceptional case; it is unprecedented to rely on intelligence in an extradition case.” When the hearing resumes tomorrow at 10:00 AM, Mr. Bayne will continue to address the issue of intelligence posing as courtroom evidence.
November 30, 2009: Evidentiary Hearing – Day 1
Today in court, Dr. Hassan Diab’s lawyer, Mr. Don Bayne, began to outline the legal grounds for allowing the defence to present evidence challenging the French case against Hassan. Mr. Bayne had submitted on October 22 nine reports from top experts showing the inherent unreliability of the handwriting analysis and intelligence material against Hassan. In this week’s court sessions, Mr. Bayne will show in detail that there is a solid legal basis for admitting the experts’ reports as evidence at the extradition hearing.
Mr. Bayne stated that Hassan’s case is “uniquely and spectacularly different” from any case that has been put before a Canadian extradition court. The case against Hassan relies heavily on intelligence material posing as evidence which would never be allowed to be put before a Canadian jury, and the sources and methods used to collect this material would never be available, not even at trial in France. Mr. Bayne warned that the case against Hassan establishes an unprecedented, dangerously low threshold to allow extradition.
To demonstrate the unreliability of the intelligence material, Mr. Bayne cited the example of contradictory intelligence information submitted by France. In June 2008, the French intelligence claimed (in court) that the suspects entered France using their own authentic passports. Since Hassan’s 1980 passport (seized in possession of someone else in 1981) does not include any entry stamps to France, the French (in December 2008) contradicted their previous intelligence to claim that the suspects entered France using fake passports.
Regarding the handwriting evidence, Mr. Bayne stated the expert witnesses will show that the methods used to analyze the handwriting material are fundamentally flawed, and the analysis is therefore manifestly unreliable.
Over the next two days, Mr. Bayne will detail the evidence that he plans to call for the extradition hearing, set to begin on January 4, 2010.
November 26, 2009: Evidentiary Hearing Scheduled
The evidentiary hearing for Hassan Diab’s case will begin on November 30, 2009. In this hearing, the court will hear – in detail – what evidence Hassan’s lawyer plans to call to challenge the reliability of the case. This is an opportunity to learn more about Hassan’s case and hear our side of the story unfiltered by the media.
The hearing schedule is as follows:
- Monday, November 30, 2009:
Start at 2:00 PM, and end at 4:00 or 5:00 PM - Tuesday-Thursday, December 1-3, 2009:
Start at 10:00 AM, and end at 4:00 or 5:00 PM each day
The hearing will take place at the Superior Court, 161 Elgin Street, Ottawa. Observers are free to come and go as they please. Hope to see you there!
October 22, 2009: Defence Submits Expert Reports
Mr. Donald Bayne, Dr. Hassan Diab’s lawyer, submitted nine reports from top experts in Canada, the United States, France, and England to the Ontario Superior Court. The reports show the inherent unreliability of the evidence against Hassan.
The French case alleges that Hassan’s handwriting matches that of the bomber. Mr. Bayne consulted with internationally renowned handwriting experts who concur that the foundation for the handwriting analysis and the conclusions drawn from it are fundamentally flawed. Specimens used in the handwriting analysis and claimed to belong to Hassan actually belong to someone else. In the words of the leading British expert, the French handwriting reports are “appalling” and the worst he has seen in thirty years.
Mr. Bayne also submitted reports from leading experts on the use of intelligence as courtroom evidence to show the inherent unreliability of intelligence and the danger of relying on bald, unsourced information that cannot be tested in criminal courts.
At the Crown Prosecutor’s request, the evidentiary hearing regarding the evidence submitted by the defence has been adjourned until the end of November or early December.
October 4, 2009: Evidentiary Hearing Planned
There will be an important evidentiary hearing for Hassan Diab’s case on October 22 and 23, 2009. In this hearing, the court will hear what evidence the defence plans to call to challenge the reliability of the case against Hassan.
This hearing is an opportunity to learn more about Hassan’s case and our side of the story unfiltered by the mainstream media. We urge you to attend the hearing and show your support for Hassan.
The hearing will take place at the Superior Court, 161 Elgin Street, Ottawa. The hearing is expected to begin at 10 AM and end at 4 or 5 PM each day. Observers are free to come and go as they please.
August 6, 2009: Outcry Against Dismissal of Dr. Diab from Carleton University
Many voices and organizations have spoken out against the sudden dismissal of Dr. Hassan Diab from Carleton University…
- The Canadian Association of University Teachers (CAUT) issued a statement condemning the dismissal of Dr. Hassan Diab and requesting that Carleton University immediately reinstate him.
- An editorial in the National Post newspaper asserted that Hassan Diab is entitled to the presumption of innocence and should be free to teach at Canadian universities.
- The Canadian Union of Public Employees (CUPE) Local 4600 wrote a letter to the President of Carleton Univesity, expressing alarm that Dr. Hassan Diab was fired after he had already commenced his contract to teach, and asserting the right of Dr. Diab to be assumed innocent until proven guilty.
- The Canadian Labor Congress wrote a letter to the President of Carleton University urging the university administration to respect the rights of its workers and to reinstate Dr. Diab.
- Thirty members of the Department of Sociology and Anthropology at Carleton University signed an opinion article deploring the firing of Dr. Hassan Diab and emphasizing the need to achieve justice through the law and due process.
- The Public Service Alliance of Canada (PSAC) wrote a letter to the President of Carleton University condemning the University’s decision to terminate Dr. Hassan Diab’s employment due to media reports and external pressures.
July 29, 2009: Termination of Dr. Diab’s Teaching Contract at Carleton University
Dr. Hassan Diab was hired by Carleton University to take over teaching an introductory sociology summer course (SOCI 1002) because the faculty member who was assigned to the course fell ill. Hassan signed the teaching contract after the university administrators had assessed the situation and consulted with the university lawyer.
On Tuesday July 28, 2009, after having taught four sessions of the course (a total of 12 hours), Dr. Hassan Diab received a letter from the Provost of Carleton University stating that the university is terminating his teaching contract. The termination letter did not offer any explanation. The teaching contract was terminated without consulting with the Dean or with the Chair of the sociology department.
The termination of Dr. Diab’s teaching contract represents a serious violation of the right of an accused to the presumption of innocence, and the responsibility of a university to protect its autonomy from inappropriate political pressure.
Dr. Hassan Diab and the Canadian Union of Public Employees (CUPE) Local 4600 that represents him filed a grievance.
June 26, 2009: Court of Appeal Upholds Dr. Diab’s Bail
The Crown Attorney appealed Justice Maranger’s decision to grant bail to Dr. Hassan Diab. Today, Justice Goudge of the Court of Appeal for Ontario handed down a rejection of the Crown’s arguments. Hassan Diab will remain on bail (under very strict conditions) until the extradition hearing early next year.
June 2, 2009: Extradition Hearing Scheduled
Ontario Superior Court Justice Robert Maranger ruled that the extradition hearing against Dr. Hassan Diab will begin on January 4, 2010. Hassan Diab has maintained his innocence since he was arrested in late 2008.
May 29, 2009: Crown To Appeal Dr. Diab’s Bail
The Crown attorney is seeking to appeal the bail of Dr. Hassan Diab.
April 1, 2009: Dr. Diab Out on Bail
After spending over four and a half months in detention in Ottawa, Dr. Hassan Diab was freed on bail under very strict conditions on April 1, 2009. Monitored with a GPS electronic ankle bracelet, Hassan is under virtual house arrest and cannot leave unless he is accompanied by one of five individuals who posted a combined $290,000 in bail bonds. The GPS monitoring alone costs over $30,000 a year.
November 13, 2008: Dr. Diab Arrested
Dr. Hassan Diab was arrested today by the Royal Canadian Mounted Police (RCMP), at the request of the French authorities who accuse him of involvement in an attack against a synagogue in Paris in 1980.
Family, longtime friends, colleagues, and students know Dr. Diab is a serious, hardworking academician and a peaceful, law-abiding citizen who has never held militant or anti-Semitic views. They all affirm that Dr. Diab cannot possibly be responsible for this heinous crime.
About Dr. Hassan Diab
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