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November 6, 2017: Fourth French Judge Orders
Dr. Hassan Diab Released on Bail – Appeal Court Decides on November 14

This week a fourth French judge ordered the release of Canadian citizen Dr. Hassan Diab on bail from a Paris prison where he has been behind bars for three years. This marks the eighth release order of Dr. Diab by four different French judges; but, as on seven prior occasions, the Paris prosecutor immediately filed an appeal. Dr. Diab is set to be released on November 14 unless the French Court of Appeal overturns the release decision.

Dr. Diab’s lawyers in France, William Bourdon, Apolline Cagnat, and Amélie Lefebvre, remarked that “this is an absolutely exceptional situation: Four judges have decided eight times that Dr. Diab should be released. The Paris prosecutor’s obstinacy in this case is not judicial but rather political”.

Dr. Diab was extradited from Canada to France in November 2014, even though the Canadian extradition judge found the evidence presented by French authorities to be “very problematic”, “illogical”, and “suspect”. The judge stated that he felt compelled under Canada’s extradition law to order Dr. Diab’s extradition.

Dr. Diab has been in pre-trial detention in France for three years. The investigative judges in charge of the case found that there is “consistent evidence” that Dr. Diab was not in France at the time of the 1980 Paris bombing outside a Paris synagogue that tragically killed four and injured dozens. Official documents as well as several witnesses confirmed that Dr. Diab was studying and taking his university exams in Lebanon at that time. Four French judges have repeatedly ordered his conditional release. However, the French Court of Appeal quashed all release orders following the prosecutor’s appeals, notably because of the climate in France.

Hassan has always maintained his innocence and strongly condemned the attack. He has a lifelong record of opposition to bigotry and discrimination, as attested by long-time friends and colleagues. He had unequivocally stated that “my life has been turned upside down because of unfounded allegations and suspicions. I am innocent of the accusations against me. I have never engaged in terrorism. I have never participated in any terrorist attacks. I am not an anti-Semite.”

On July 28, 2017, the French investigative judges issued a notice about the end of investigations in Dr. Diab’s case. However, their final decision regarding whether to release Dr. Diab or refer him to trial was delayed because the French prosecutor failed to submit arguments within one month, as stipulated in the French Criminal Procedure Code. To this day, no such submission has been filed.

Recently, Dr. Diab was informed that officials of a foreign state met with the French investigative judges in late September offering their help in getting him charged instead of freed and returned to Canada. This latest development increased serious and legitimate fears that political pressure might interfere with the investigations and jeopardize Dr. Diab’s right to fair and independent justice.

A “note blanche” (white note) with no date, sources, or even details was provided to the French investigative judges during the September meeting. The note refers to old, recycled, unfounded, anonymous, and contradictory allegations that were discredited by the French investigative judges and withdrawn from the extradition hearing in Canada because of their extremely problematic nature. The note even misstates the date of the Paris bombing as 1982 and seems to confuse Dr. Diab with someone else. Its palpable unreliability lends credence to the fact that this intervention by a foreign state is nothing more than a last-minute, desperate attempt to bring political pressure on the French judicial authorities and to deny Dr. Diab justice in France. Dr. Diab’s lawyers in France noted that “the last-minute, patched up, and self-contradictory aspect of this document clearly reflects its utterly opportunistic purpose”.

Don Bayne, Dr. Diab’s lawyer in Canada, stated that “Dr. Diab has been pleading for help from the Canadian government in his Kafkaesque situation as he remains imprisoned despite evidence of his innocence. Canada has been timid to act to aid this unjustly detained Canadian, while a foreign state is taking direct action seeking to weigh in on a procedure conducted by French judicial authorities. Canada’s voice of protest must be registered at the highest level of our government. The duty of a government is protection of its citizens. Prime Minister Trudeau must demand Dr. Diab’s freedom and return to Canada. Will the Canadian government stand idly by as the injustices in this case compound?”

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September 21, 2017: French Investigative Judge’s Decision Delayed as Prosecutor Yet to Submit Written Arguments. Hassan’s Supporters Send Parliamentary Petition and Open Letter to PM Trudeau.

On July 28, 2017, the French investigative judge issued a notice about the end of investigations in Dr. Hassan Diab’s case, the Canadian citizen and sociology professor who was extradited to France in November 2014. However, the decision has been delayed as the prosecutor is yet to submit written arguments.

Mr. Don Bayne, Dr. Diab’s Canadian lawyer remarked, “According to French law, both Dr. Diab’s French lawyers and the French prosecutor have one month after the investigating judge announces the closure of the investigation to file their respective written submissions. The defence complied. The prosecutor did not. There is apparently no sanction for the prosecutor who can delay the judge’s decision whether to free Dr. Diab or subject him to a trial on secret intelligence that in Canada and most of the Western world is both unfair and unconstitutional. This is yet another manifestation of the mounting injustices that have plagued this case and victimized Dr. Diab – who is this century’s Dreyfus – for the past 8 years. Surely the great republic of France will put an end to injustice, will listen to the investigating judge who has stated that there is consistent and corroborated evidence of Dr. Diab’s innocence”.

Dr. Diab’s French lawyers, William Bourdon, Apolline Cagnat, and Amelie Lefebvre noted that “though there is no legal sanction to the non-observance of the delays that apply once the investigations are finished, we are obviously very disappointed that the prosecutor does not comply with them in this case where Hassan Diab has consistently proclaimed his innocence and consistent evidence of his innocence was collected during the investigations. Hassan remains in prison where he has now spent almost 3 years despite repetitive release orders constantly overturned by the Court of Appeal.”

Today, MP Don Davies presented a Parliamentary petition that urges the Canadian government to intervene to bring Dr. Hassan Diab home. The petition was signed by thousands of Canadians and Permanent Residents.

In addition to the petition, an Open Letter signed by hundreds of Diab’s supporters was sent to Prime Minister Trudeau, Foreign Affairs Minister Chrystia Freeland, and Justice Minister Jody Wilson-Raybould urging them to intervene to put an end to Dr. Diab’s Kafkaesque situation.

Alex Neve, the Secretary General of Amnesty International, stated that “this further delay, attributable to the French prosecutor, is one more unconscionable injustice. At a minimum Mr. Diab must be released on bail while the case proceeds, and the Canadian government must – at senior levels – insist that it happens without any further delay.”

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August 9, 2017: 1,000 Days in Prison in France

Today, Hassan Diab has spent 1,000 days in prison in France, despite documented and compelling evidence of his innocence.

Dr. Diab was extradited from Canada to France in November 2014 in connection with a 1980 bombing outside a synagogue in Paris. He has been held in pre-trial detention in France since then.

The Canadian extradition judge found that the evidence presented by French authorities is “suspect” and “very problematic”, yet he stated that he felt compelled under Canada’s extradition law to order Dr. Diab’s extradition.

A French investigating judge found “consistent evidence” supporting Hassan’s innocence, and concluded that Hassan was not in France in October 1980. Hassan was ordered released on bail SIX times by various French judges. However, the French prosecutor appealed each time, and the Court of Appeal overturned every release order due to the political climate in France.

To this day, Hassan remains locked up in a French prison cell, 20 hours a day, deprived of his freedom and torn from his family and home in Canada. Dr. Diab has been imprisoned or under very strict bail conditions for almost nine years.

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July 28, 2017: The French Investigative Judge Issues Notification of the End of His Investigations

Today, the French investigative judge in charge of Dr. Hassan Diab’s case issued a notice about the end of his investigations. Both Dr. Diab’s French lawyers and the French prosecutor have one month to file their respective written submissions. After reviewing the submissions, the investigative judge will decide whether to refer Hassan’s case to trial or order Hassan’s release for lack of evidence.

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May 2, 2017: Court of Appeal in France Overturns Sixth Release Order

Today, the French Court of Appeal overturned once again the release order of Dr. Hassan Diab at the prosecutor’s behest. Over the past year, Dr. Diab has been ordered released six times by French anti-terrorism investigative judges, but his release orders have been repeatedly overturned. The investigative judges found that there is “consistent evidence” that Diab was in Lebanon at the time of the 1980 Paris bombing and stated that this finding demands his release.

William Bourdon, Hassan’s lawyer in France, noted that it is unprecedented in France to have multiple release orders by the investigative judges overturned. He noted that “after 36 years and since no one else was indicted, the Court of Appeal is clinging on to Hassan Diab. He is detained because of the judges’ fear to be accused of laxity in the context of today’s fight against terrorism in France. Such a situation would be inconceivable in an ordinary-law procedure.”

Hassan’s supporters are calling on Prime Minister Trudeau to live up to his words that Canada is back on the world stage and looking out for its citizens. In August 2015, Trudeau said that then-Prime Minister Harper “has an obligation to use the full force of the Prime Minister’s Office to help Canadian citizens when they are unjustly imprisoned abroad. His inaction must end today.”

Supporters are calling on Prime Minister Trudeau to speak out publicly and use the full force of his office to help Canadian citizen Hassan Diab, who is in the extraordinary situation of remaining behind bars despite being ordered released an unprecedented six times.

Don Bayne, Dr. Diab’s Canadian lawyer, noted that “Dr. Diab’s continued incarceration is wholly and manifestly unjust. It is past time for this government to come to the aid of a Canadian citizen, to end this travesty of justice, to bring him home. ‘Prime Minister Trudeau, Minister Freeland, where are you when an innocent Canadian needs you?’ ”

Roger Clark, the former Secretary General of Amnesty International Canada, remarked that “This travesty of justice continues solely for political reasons, there being no legal basis for Dr. Diab’s continuing imprisonment. Rather than acknowledge that an egregious error has been perpetrated, French authorities insist on maintaining their cruel charade against a background of widespread islamophobia and a fear of appearing weak on terrorism. Canada must immediately convey to the French Government the urgency of preventing further distortion of justice and of ensuring Hassan Diab’s speedy return to his home and family.”

In May 2016, Dr. Diab was ordered released on bail by the French investigative judge and the judge of freedom and detention. He spent ten days out on bail in Paris without incident, before his release order was overturned by the same panel of Court of Appeal judges which has repeatedly denied him bail.

Dr. Diab was extradited from Canada to France in November 2014, for investigation regarding the bombing of a Paris synagogue in 1980. The Canadian extradition judge described the evidence against Hassan as “illogical”, “very problematic”, and “convoluted”. However, the Canadian judge stated that the low threshold for evidence under Canada’s extradition law left him no choice but to commit Dr. Diab to extradition.

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April 24, 2017: French Investigative Judges Order Diab’s Release for Sixth Time

Today, two French anti-terrorism investigative judges ordered again the release of Dr. Hassan Diab, the Canadian academic who was extradited from Canada to France in November 2014. The French judges found that there is “consistent evidence” that Dr. Diab was in Lebanon at the time of the 1980 Paris bombing. This is the sixth release order for Dr. Diab since last May, and the second release order within three weeks. The French Court of Appeal overturned all previous release orders. The prosecutor is appealing this latest release order.

William Bourdon, Apolline Cagnat, and Amélie Lefebvre, Hassan’s lawyers in France, noted that “even though two weeks ago, the Court of Appeal overturned for the fifth time the decision to release Hassan Diab, the investigating judges have refused to renew Hassan’s expiring detention warrant. As the investigation progressed, the elements for charge that were already very weak to begin with have shrunk and are now close to nothing, while the elements for discharging Hassan are multiplying and are extremely convincing. The investigating judges are firm on the fact that it is not possible in a state of law to continue to detain Hassan.”

Don Bayne, Dr. Diab’s Canadian lawyer, stated that “the French investigative judges have repeatedly ordered Dr. Diab’s release because of “consistent evidence” that he was studying for and writing exams in Lebanon and was not even in France at the time of the 1980 bombing – and thus is completely innocent. Dr. Diab’s continued incarceration is wholly and manifestly unjust. It is past time for this government to come to the aid of a Canadian citizen, to end this travesty of justice, to bring him home. ‘Prime Minister Trudeau, Minister Freeland, where are you when an innocent Canadian needs you?’ ”

When Dr. Diab was ordered released by the judge of freedom and detention in May 2016, he spent ten days out on bail in Paris without incident, before his release order was overturned by the same panel of Court of Appeal judges which has repeatedly denied him bail.

Dr. Hassan Diab was extradited from Canada to France in November 2014. The Canadian extradition judge described the evidence against Dr. Diab as “illogical”, “very problematic”, and “convoluted”. However, the Canadian judge stated that the low threshold for evidence under Canada’s extradition law left him no choice but to commit Dr. Diab to extradition.

Roger Clark, the former Secretary General of Amnesty International Canada, remarked that “this travesty of justice continues solely for political reasons, there being no legal basis for Dr. Diab’s continuing imprisonment. Rather than acknowledge that an egregious error has been perpetrated, French authorities insist on maintaining their cruel charade against a background of widespread islamophobia and a fear of appearing weak on terrorism. Canada must immediately convey to the French Government the urgency of preventing further distortion of justice and of ensuring Hassan Diab’s speedy return to his home and family.”

Supporters of Dr. Diab have launched a Parliamentary petition calling upon the Government of Canada to work towards the immediate granting of bail to Hassan and securing his urgent return to his family and home in Canada.

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November 14, 2016: Two Year Anniversary of Dr. Hassan Diab’s Extradition

Today, Hassan marks two years in pretrial detention. He remains in prison in the vicinity of Paris, where he has been in detention since the Supreme Court of Canada refused to hear his case on November 13, 2014, and he was extradited to France the following day.

Hassan was extradited based on extremely contested and weak evidence. Justice Maranger, the Canadian extradition judge, described the case against Hassan as “problematic” and “weak”, and declared that “the prospects of conviction in the context of a fair trial seem unlikely”, but said his interpretation of Canada’s extradition law left him no choice but to commit Hassan to extradition.

On October 27, 2016, a French investigative judge (juge d’instruction) ordered the release of Dr. Diab on bail. In his release order, the judge stated that he found “consistent evidence” supporting Hassan’s innocence… At this stage of the inquiry, there exists consistent evidence tending to establish that Hassan Diab was in Beirut late September, early October 1980… this calls into question information implicating him in the attack since this relies on his presence in France during this period”.

However, in a deeply disappointing move, the French prosecutor blocked Hassan’s release, and the Court of Appeal overruled the investigative judge’s orders and renewed Hassan’s detention.

Michael Vonn, Policy Director of the British Columbia Civil Liberties Association, one of the interveners during the appeal of Hassan’s extradition at the Court of Appeal for Ontario, remarked on two years of pretrial detention for Hassan, saying “The Government of Canada must act to raise Mr. Diab’s case with the French authorities. We have the gravest concern that this case represents a profound miscarriage of justice and the time to act is long overdue.”

Sukanya Pillay, Executive Director and General Counsel of the Canadian Civil Liberties Association, another intervener on Hassan’s side at the Court of Appeal for Ontario, expressed concern that, “Mr. Diab has spent two years already in a French prison, was extradited on the basis of what appeared to be manifestly unreliable evidence, and has accordingly experienced a deprivation of fair process and an injustice to him and his family.”

See article:

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November 12, 2016: French Investigative Judge Finds “Consistent Evidence” Supporting Hassan Diab’s Innocence

In a highly positive development for Dr. Hassan Diab, a French investigative judge (juge d’instruction) found “consistent evidence” supporting Hassan’s innocence. Hassan has been in pre-trial detention in France since he was extradited from Canada two years ago for investigation into a 1980 bombing of a Paris synagogue.

“At this stage of the inquiry, there exists consistent evidence tending to establish that Hassan Diab was in Beirut late September, early October 1980… this calls into question information implicating him in the attack since this relies on his presence in France during this period”, wrote the French investigative judge in an order released on October 27, 2016.

The judge immediately ordered the release of Dr. Diab on bail. He issued a second order on the same day stating that there are no grounds for further detention of Hassan.

But, in a deeply disappointing move, the prosecutor blocked Hassan’s release, and the Court of Appeal overruled the investigative judge’s orders and renewed Hassan’s detention. Hassan’s lawyers filed an appeal to France’s Court of Cassation.

William Bourdon, Hassan’s lawyer in France, noted that “Hassan Diab’s situation is unprecedented. New consistent evidence of his innocence was collected but the Court of Appeal refused, for the 4th time, to release him, even though the investigative judge decided so. After 36 years and since no one else was indicted, the Court of Appeal is clinging on to Hassan Diab. He is detained because of the judges’ fear to be accused of laxity in the context of today’s fight against terrorism in France. Such a situation would be inconceivable in an ordinary-law procedure.”

Earlier this year, in May 2016, Hassan was ordered released on bail by the investigative judge and the judge of freedom and detention. He spent ten days out on bail in Paris before his release order was overturned by the same panel of Court of Appeal judges which has repeatedly denied him bail.

Don Bayne, Hassan’s lawyer in Canada, commented on the significant development stating that “Dr. Diab’s case is a tragic example of the serious flaws in Canada’s extradition laws and practices. The courts in Canada at every level failed the basic test of fundamental justice that the evidence on which the foreign state relies to deprive a Canadian of his or her liberty be ‘reliable’. The evidence in Dr. Diab’s case was shown to be so unreliable (flawed handwriting comparisons said to be worthless by the world’s leading handwriting experts, plus secret intelligence which is not evidence at all) that this innocent Canadian never should have been extradited. Yet he was, and despite even more evidence of Dr. Diab’s innocence, he remains locked up in a French prison on a path to a manifestly wrongful conviction.”

See article:

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May 24, 2016: Dr. Hassan Diab Returned to Pretrial Detention

After his release on bail on May 14, 2016, under house arrest and electronic monitoring, an appeal court in France ordered Dr. Hassan Diab to return to a French prison on May 24, 2016. The unfortunate decision was based on the appeal court’s assumption that Dr. Diab is a flight risk and a threat to civil order. This is despite the fact that Hassan abided by very strict bail conditions for years in Canada and did not flee or cause civil disorder during his 10 days of limited freedom leading up to the appeal court’s decision.

Prior to the appeal court’s decision, Mr. William Bourdon, Hassan’s French attorney, had stated “The court of appeal mentioned the risk of fleeing as a reason to overrule the decision to release Hassan Diab. He will be present at the next hearing so this will prove to the court of appeal that he never intended to flee, as was the case in the whole extradition procedure in Canada.”

Dr. Rania Tfaily, Hassan’s wife, was planning to travel to Paris with the couple’s two young children in the hope they could interact with Hassan outside the prison environment. “Now even this simple dream has been crushed,” she said. “I hope that this [Canadian] government will look into the injustices in Hassan’s case and why a Canadian citizen is being held in detention for more than 18 months for a case that is still under investigation and for which a Canadian judge found the evidence to be lacking.”

For more information, see Ottawa Citizen Article:
http://www.justiceforhassandiab.org/wp-content/uploads/2016/06/ottawa_citizen_2016-05-24.pdf

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May 14, 2016: Dr. Hassan Diab Released on Bail

After 18 months in pre-trial detention in France for a crime he did not commit, a French judge released Dr. Hassan Diab on bail on May 14, 2016.

The prosecutor has filed an appeal of Hassan’s release, which will be heard by an appeal court early next week. His French lawyer, Mr. William Bourdon, said Hassan will be in court for next week’s appeal, effectively negating the prosecution grounds for returning him to jail.

Mr. Bourdon said, “He [Hassan] will be present at the next hearing so this will prove to the court of appeal that he never intended to flee, as was the case in the whole extradition procedure in Canada.”

In 2011, when the Canadian extradition judge ruled in favor of extradition, he described the evidence as “very problematic” and “suspect”. In an unprecedented move, the Canadian judge stated that “the prospects of conviction in the context of a fair trial seem unlikely”. However the judge said that he felt obliged under Canada’s extradition law to commit Hassan to extradition.

Hassan and his family express their sincere gratitude to their friends and supporters who have stood by them since his ordeal began in Canada in 2008.

For more information, see Ottawa Citizen Article:
http://www.justiceforhassandiab.org/wp-content/uploads/2016/06/ottawa_citizen_2016-05-17.pdf

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November 14, 2015: One Year Anniversary of Dr. Hassan Diab’s Extradition

On the one-year anniversary of his pretrial detention, Dr. Hassan Diab remains in prison in the vicinity of Paris. He has been in detention for one year, since the Supreme Court of Canada refused to hear his case on November 13, 2014, and he was extradited to France the following day.

“This is the first anniversary of Dr. Diab’s extradition. He is not doing well. Immediately on reaching France, he was imprisoned. Last week, he was denied bail. Whatever else, his life, and that of his family in Canada, remains a nightmare. They insist on his total innocence, and seem to have much evidence to back them up…

[W]hat Canada can do is strongly demand a fair process from France. Surely all the faulty handwriting analyses should be discarded, as they were in Canada, as well as all the unsourced intelligence that was withdrawn in Canada. In other words, we must demand that no tainted evidence is used against Dr. Diab…”

Read the full article in The Globe and Mail:
“Canada must demand fair investigation by France in case of Hassan Diab”, by Gerald Caplan, The Globe and Mail, November 9, 2015

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Apr 27, 2015: Dr. Hassan Diab Remains Incarcerated in a French Prison

Dr. Hassan remains incarcerated at Fleury-Merogis prison (near Paris) since he was extradited from Canada on November 14, 2014. He is expected to remain in prison for up to two years while awaiting a decision about whether his case will be brought to trial. Hassan was not in France at the time of the 1980 rue Copernic bombing. His palm prints and fingerprints do not match those of the suspect. He is not an anti-Semite, and he strongly condemns all forms of bigotry and violence.

In prison, Hassan is in a special unit which holds 4-8 inmates. He is confined to his cell for 20 hours a day. When he is allowed to leave his cell, he can access a small exercise room, a small collection of books, and can interact with the other inmates in his unit. He is denied access to the general prison services, including the main library and sports field. Hassan’s sleep is often interrupted by the guards turning on the lights every hour at night. The food provided to inmates is often insufficient, so they often need to supplement it by purchasing additional items from the prison canteen.

The hardest part for Hassan is being separated from his family in Canada – his wife, his toddler daughter, and his infant son who was born after he was extradited. He communicates with his family mostly through letters. He is not allowed to receive phone calls. He must initiate calls to the outside world himself, and only to approved phone numbers. For the first five months, he was having great difficulty calling his wife in Ottawa, despite repeated requests to prison authorities to resolve this problem. Since April 17, he has been able to connect with his wife. We hope that the phone issue is now resolved.

Hassan is an avid reader and is very thankful for all the letters and books he receives from family and friends. He has been learning French.

Hassan was denied bail despite his French lawyer agreeing to very strict bail conditions, including house arrest and electronic monitoring. Hassan appealed the decision and was denied bail on appeal. This is despite the fact that he fully complied with similarly strict bail conditions in Canada for years. In refusing bail, the court relied on the unsourced intelligence and discredited handwriting analysis that remain in the dossier in France. The fact that Hassan’s fingerprints and palm prints do not match those of the suspect was not taken into consideration. The court also denied Hassan the opportunity to appear in person at the bail hearing; he could only appear via video-link.

Despite the hardship of incarceration, Hassan remains hopeful that he will be exonerated and will return to his home in Canada. He extends his deepest gratitude to his supporters for their steadfast support. He draws strength from your support and the hope that justice will one day be achieved.

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Nov 14, 2014: Dr. Hassan Diab Extradited to France

Today before dawn, Dr. Hassan Diab was whisked away from a detention facility in Ottawa and extradited to France, without having a chance to say goodbye to his pregnant wife and 2-year old daughter. This is despite the fact that the Canadian government had 45 days to enforce the extradition.

Hassan is now in prison in France under judicial investigation (mis en examen) for a crime he did not commit. He must now bear the burden of isolation from family, friends, and community, while navigating a foreign language and legal system. He can expect to remain incarcerated for up to two years before the investigating judge decides whether or not to put him on trial.

Speaking of the unexpected swiftness with which Canada removed Dr. Diab, supporter Donald Pratt said, “This action by the Canadian government is inhumane to the point of cruel and unusual. This is not about Canada’s authority to do what it has done. This is about failing to respect standards of human decency.”

Hassan was extradited based on a discredited handwriting analysis report that was described by the Canadian extradition judge as “convoluted, very confusing, with conclusions that are suspect.” Extradition legal expert Dr. Gary Botting asked “How can you give any credence to anything that’s one sentence long and hang a guy with it?”

Jacqueline Hodgson, a law professor at the University of Warwick, said: “The case of Hassan Diab, a 60-year-old sociology professor who has been extradited to France, is a troubling one… The evidence against him hinges firstly on unsourced intelligence that would be inadmissible in a criminal court in England and Wales (reliability cannot be tested if the source of information and the manner in which it was obtained are unknown); and secondly on the opinion of a handwriting expert described as wholly unreliable by five of the world’s leading handwriting analysts.”

Hassan Diab is represented by French lawyer Stéphane Bonifassi. Speaking to the Canadian press, Mr. Bonifassi said, “Hassan is in good spirits and I would say in combative spirits. We will fight the accusations, and hopefully the fact that there is no evidence against my client will prevail and he will be set free.”

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Nov 13, 2014: Profoundly Disappointing Supreme Court Decision

Today, the Supreme Court of Canada dismissed Dr. Hassan Diab’s application for Leave to Appeal. Hassan, his family, and supporters are disappointed and dismayed by the Supreme Court’s refusal to hear his case, and to address the issues of serious public importance at stake. In response to the Supreme Court’s decision, Dr. Diab issued the following statement.

Français
Statement by Hassan Diab
November 13, 2014

I am deeply shocked that the Supreme Court refused to even hear the appeal in my case. This is a very sad day for me, my family and supporters, and the state of extradition law in Canada. I had hoped for justice from the Canadian legal system.

I have been living a Kafkaesque nightmare for over six years, fighting false allegations against me, enduring detention, strict bail conditions, the loss of my employment, and enormous stress on my family. It is beyond devastating that the Supreme Court would allow my extradition for a crime that I did not commit and based on a handwriting analysis report that was shown by world-renowned handwriting experts to be wholly unreliable, totally erroneous, and biased.

It is shocking that this would happen in Canada, despite the numerous commissions on wrongful convictions based on faulty forensic evidence and the Court’s vow to never let this happen again.

I, my family, friends, and supporters, will continue to fight the false allegations that have been imposed on me, a Canadian citizen who is law-abiding, peaceful, compassionate, and who abhors violence.

I am grateful and heartened by the outpouring of support from thousands of individuals and organizations that recognize the injustice that I have experienced and the unfairness of Canada’s extradition law. I am also deeply thankful to my devoted lawyers who tirelessly worked on my behalf for years.

I vow to never give up, and I will always remain hopeful that I will eventually return to my home in Canada and be reunited with my wife and children.

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Nov 12, 2014: Leave of Appeal Decision to be Released tomorrow, on November 13

On November 13, 2014, the Supreme Court of Canada will announce its decision on whether to grant leave to appeal in the extradition case of Dr. Hassan Diab.

The Supreme Court represents Hassan’s last real chance for justice in Canada. If leave is granted, the case would be heard by the Supreme Court sometime in 2015. If leave is not granted, the government would extradite Hassan to France soon after the decision, where he would be incarcerated while the French authorities decide whether or not to put him on trial.

France’s anti-terrorism courts allow convictions based on secret information that is inadmissible in Canadian criminal trials. In Hassan’s case, France is also relying on a handwriting analysis report that has been thoroughly discredited by five leading handwriting experts. A trial conducted in these circumstances offends principles of fundamental justice and condemns an innocent man.

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May 15, 2014: Court of Appeal for Ontario upholds Dr. Hassan Diab’s extradition

Today, Dr. Hassan Diab’s appeal of both the extradition committal decision and surrender order was dismissed by the Ontario Court of Appeal. In response to the Court’s decision, representatives from Dr. Diab’s legal team, civil society organizations, and the Hassan Diab Support Committee conducted a press conference at Parliament Hill in Ottawa. Dr Diab’s supporters also held a rally on the Hill to protest the decision.

At the press conference, Dr. Diab’s lawyer, Mr. Donald Bayne, said that the handwriting analysis report submitted as evidence against Hassan is “ludicrous” and “manifestly unreliable”, that the fingerprints from the scene do not match those of Hassan, that a description of the suspect was of a middle-aged man while Hassan was in his 20s at the time, and that secret information from an unnamed source was changed to reflect the fact that Hassan’s passport showed he was not in France at the time.

“If that isn’t manifest unreliability, then there is no manifest unreliability, and we better stop talking about there being a real constitutional requirement before Canadians are stripped of their liberty, as this man has been repeatedly, for the past 5½ years, and subjected to a foreign process”, Mr. Bayne said.

In a written statement read by a member of the Hassan Diab Support Committee, Dr. Diab said, “It is with great shock that I learned that the Court of Appeal upheld my extradition order on the sole basis of a discredited handwriting analysis report… Such a decision means that any Canadian citizen can be detained, uprooted, and extradited based on deeply flawed evidence that a foreign state submits… I neither participated in nor had any knowledge of this heinous crime. I have always opposed anti-Semitism, discrimination, and violence. I am innocent of the accusations against me.”

Dr. Diab’s lawyers will be asking for leave to appeal the case to the Supreme Court of Canada.

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November 4-5, 2013: Court of Appeal for Ontario

On Monday and Tuesday, November 4 and 5, Dr. Hassan Diab’s lawyers appealed the unjust extradition committal decision and surrender order. The appeal was heard by a three-judge panel of the Ontario Court of Appeal at Osgoode Hall in Toronto. The courtroom was packed with Dr. Diab’s supporters who came to show their support for Dr. Diab and their concerns about Canada’s unfair extradition law.

On Monday, the Court heard arguments from Hassan’s lawyers, Marlys Edwardh and Dan Sheppard, addressing the five grounds of appeal.

  1. That the extradition judge erred by ordering committal on the basis of a shoddy handwriting analysis report by the French analyst Ms. Anne Bisotti. The report claimed that Hassan’s handwriting resembles five words written on a hotel registration card in 1980. Ms. Bisotti utterly failed to follow proper methodology as recognized in the field of handwriting analysis.
  2. That the Minister of Justice erred in ordering Dr. Diab extradited when France is only seeking him for questioning and no decision has been made about whether to send his case to trial in France. According to Canada’s extradition law, the Minister of Justice does not have jurisdiction to order surrender for a purpose other than to stand trial.
  3. That it would be unjust, oppressive, and contrary to the Charter to order the surrender of Dr. Diab to be tried on the basis of unsourced and uncircumstanced intelligence.
  4. That it would be unjust, oppressive, and contrary to the Charter to order the surrender of Dr. Diab to be tried on the basis of two previous handwriting reports that France had withdrawn after it was revealed that they relied on samples not written by Dr. Diab.
  5. That the Minister of Justice erred in ordering surrender on the basis of evidence that is plausibly connected with torture, and that the Minister declined to conduct an inquiry into this connection.

On Monday, the Court also heard from three interveners – Amnesty International, the Canadian Civil Liberties Association, and the British Columbia Civil Liberties Association – regarding the constitutionality of surrender for a purpose other than trial, and the obligation of the Minister of Justice to investigate whether unsourced, uncircumstanced intelligence may be the product of torture.

Amnesty noted that the “Minister of Justice should refuse extradition where there is a real risk that torture-derived evidence would be used at trial.” BCCLA observed that the global “war on terror” has impacted the security and intelligence practices of many states, including Western democracies. The result has been a “dangerous dynamic whereby all too often individuals get lost in the state machinery of suspicion and guilt by association”, rather than being properly charged based on reliable evidence. In commenting on the handwriting evidence, CCLA noted that Hassan’s case “rests on problematic handwriting analysis, and bitter experience has demonstrated that unreliable evidence can take many forms and occasion much injustice. Over the past twenty-five years, ‘Canada’s growing platoon of the wrongfully convicted’ has exposed the risk of unreliable evidence occasioning miscarriages of justice.”

On Tuesday, the Court heard arguments from Crown attorneys arguing that the committal and surrender orders should be upheld based on the presumed reliability of evidence submitted by an extradition partner.

The appeal decision is not expected for several months.

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July 4, 2013: Appeal to be Heard on November 4 and 5, 2013

Dr. Hassan Diab’s appeal of the both Justice Maranger’s extradition decision and Minister Nicholson’s surrender order will be heard by the Ontario Court of Appeal in Toronto on November 4 and 5, 2013.

Three human rights organizations, Amnesty International, the British Columbia Civil Liberties Association (BCCLA), and the Canadian Civil Liberties Association (CCLA), have filed interventions with the court, expressing their deep concerns about the case.

In its submission, Amnesty wrote that extraditing a person to face a trial where evidence gleaned from torture could be introduced violates Canada’s obligations under international law. “The Minister of Justice should refuse extradition where there is a real risk that torture-derived evidence would be used at trial.”

BCCLA observed that the global “war on terror” has impacted the security and intelligence practices of many states, including Western democracies. The result has been a “dangerous dynamic whereby all too often individuals get lost in the state machinery of suspicion and guilt by association”, rather than being properly charged based on reliable evidence.

In commenting on the handwriting evidence, CCLA noted that there is “a substantial body of evidence” that questions its reliability. “Bitter experience has demonstrated that unreliable evidence can take many forms and occasion much injustice.”

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February 5, 2013: Appeal Launched

Dr. Diab’s lawyers have launched an appeal of the both Justice Maranger’s decision (June 2011) to extradite Hassan and Minister Nicholson’s order to surrender him to France (April 2012). It is expected that the appeal will be heard by the Ontario Court of Appeal in 2013.

In appealing the judge’s decision, Dr. Diab’s lawyers make the case that the judge should not have committed Hassan to extradition based on the French handwriting report that the judge himself found to be “convoluted”, “very confusing”, and “with conclusions that are suspect”. To counter the Crown attorneys’ argument that France might have a “unique” handwriting methodology that differs from that used in Canada, Britain, and the United States, Hassan’s lawyers submitted evidence from two additional internationally renowned European handwriting experts who are knowledgeable about handwriting comparison analysis in French courts. These two experts attested that handwriting examination has a universally accepted methodology, and that there is no “unique” handwriting examination system in France. They also confirmed that the French handwriting report against Dr. Diab is methodologically flawed and its conclusions are unreliable.

In appealing the Justice Minister’s surrender order, Dr. Diab’s lawyers argue that the Minister lacks jurisdiction to order Dr. Diab’s surrender because Hassan has not been charged in France. Rather, France wants him only for investigation purposes. Dr. Diab’s lawyers also argue that surrendering Dr. Diab on the basis of secret and unsourced intelligence that may be the product of torture violates Dr. Diab’s rights under the Canadian Charter.

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April 13, 2012: Press Conference in Reaction to Surrender Order

In reaction to Minister Nicholson’s signing an order surrendering Dr. Hassan Diab to France, a press conference was held on Parliament Hill, Ottawa, on April 13.

Speakers at the press conference were Dr. Diab, Donald Bayne (Hassan Diab’s lawyer), and Matthew Behrens (Campaign to Stop Secret Trials in Canada).

The speakers addressed the unjust and unconstitutional decision to surrender Hassan Diab to France, and in particular the newly revealed fact that the French have not laid charges against him. It is shocking that the Minister is prepared to hand a Canadian over to a foreign state for mere questioning and on mere suspicion, where he may languish for years in pre-trial detention. The speakers also addressed problems with Canada’s extradition law, and responded to questions from the media.

“This is not extradition to stand trial,” Mr. Bayne said. “France has admitted they have an incomplete case and in fact there may never be a trial or sufficient evidence to put him on trial. France wants this country to hand over a Canadian citizen to further an investigation. This has never been done in Canada.”

In his statement at the press conference, Dr. Diab said:

“I am innocent of the accusations against me. I have never engaged in terrorism.”

“I am not an anti-Semite. I have always been opposed to bigotry and violence.”

“My life has been turned upside down because of unfounded allegations and suspicions.”

“It would be a grave injustice to extradite me for a crime that even the evidence shows I did not commit.”

Hassan diab’s lawyer is appealing both Justice Maranger’s decision (June 2011) to extradite Hassan and Minister Nicholson’s order to surrender him to France. It is expected that the appeal will be heard by the Court of Appeal for Ontario in 2013.

See also:
Video of the Press Conference on April 13, 2012
Ottawa Citizen article
Globe and Mail article

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April 5, 2012: A Sad Day for Justice in Canada: Minister Signs Surrender Order

On April 4, 2012, Justice Minister Rob Nicholson signed an order surrendering Dr. Hassan Diab to France, despite new information emanating from French officials stating that Dr. Diab is wanted in France for mere questioning, and that no decision has been made about whether to try Dr. Diab.

In legal submissions to the Minister, Mr. Donald Bayne, Hassan’s lawyer, noted that Canada’s Extradition Act does not allow the Justice Minister to surrender Canadian citizens to other countries for mere questioning and to languish in jail for years without trial.

Mr. Bayne also noted that the case against Dr. Diab “is anchored centrally around unsourced, uncircumstanced, …, anonymous intelligence assertions”. The Supreme Court of Canada has held that trials based on unchallengeable intelligence are contrary to principles of fundamental justice. Human Rights Watch and other human rights organizations have criticized France for running unfair trials based on intelligence that cannot be tested in court.

In making his surrender decision, Minister Nicholson stated that he is interpreting Canada’s Extradition Act in a “flexible manner”. Despite noting that “under Canadian law, our courts have identified serious concerns with the admission of intelligence evidence to detain and prosecute individuals … [and] have found that the admission of such evidence would … render a trial unfair”, the Minister refused to seek assurances from France that intelligence evidence would not be used against Dr. Diab if he were to be tried in France.

In June 2011, Justice Robert Maranger of the Ontario Superior Court committed Dr. Diab for extradition. In his decision, Maranger concluded that the case against Hassan Diab was “very problematic”, “very confusing”, “very convoluted” and drew “suspect conclusions”. He noted that “the prospects of conviction in the context of a fair trial seem unlikely”, but said his interpretation of Canada’s extradition law left him no choice but to commit Dr. Diab to extradition.

During the court hearings, Maranger refused Dr. Diab the opportunity to meaningfully challenge the evidence, claiming that he would be able to do so in France. In fact, it is doubtful that Dr. Diab would be afforded this opportunity under France’s special anti-terrorism court, which allows the use of secret and unsourced intelligence, restricts the calling of defense experts, and has been criticized for numerous human rights violations. The lack of procedural safeguards is of particular concern given the highly politicized nature of the case and the current anti-immigrant and anti-Muslim climate in France.

Maranger’s ruling is currently under appeal at the Court of Appeal for Ontario. Dr. Diab’s lawyers will also file for a judicial review of Minister Nicholson’s surrender decision.

See also:
‘We expected this decision, but not this way’, Ottawa Citizen, April 6, 2012

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March 22, 2012: Minister Nicholson Delays His Decision, Again

Justice Minister Rob Nicholson has delayed again his decision on whether to surrender Dr. Hassan Diab to France. The Minister asked for another month in light of “new material and new assessment of the French case”. The Minister is now expected to make his decision by April 18, 2012.

The allegations against Dr. Diab are based on secret intelligence from unknown sources that may have been the product of torture, and on a French handwriting analysis report that internationally renowned handwriting experts have unanimously condemned as deeply flawed.

The extradition judge described the case against Hassan as “problematic” and “weak”, and declared that “the prospects of conviction in the context of a fair trial seem unlikely”, but said his interpretation of Canada’s extradition law left him no choice but to commit Hassan to extradition.

Hassan’s case highlights the unfairness of Canada’s extradition law. Canadians may be extradited to foreign countries based on the flimsiest of evidence that would not stand in a Canadian court of law. Moreover, Canada’s extradition law is one-sided; Canada extradites its citizens to France, but France does not extradite its own citizens.

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January 20, 2012: Supporters Rally at Dept of Justice in Ottawa

On Friday January 20, 2012, human rights activists, friends, and supporters of Hassan Diab braved the bitter cold and gathered outside the Department of Justice in Ottawa to hand-deliver a petition to Justice Minister Rob Nicholson.

The petition, signed by hundreds of individuals and organizations, calls on Minister Nicholson to immediately halt extradition proceedings against Dr. Diab and to refuse to hand over Dr. Diab to France.

“I appeal to the Minister of Justice, Mr. Rob Nicholson, to put an end to the unjust case against me… I ask that Canadian standards of evidence be applied in extradition cases, and that I be given the same rights to defend myself as any other Canadian,” said Dr. Diab, who joined supporters outside the Department of Justice before the petition was delivered.

Also speaking at the rally, Matthew Behrens from Stop Canadian Involvement in Torture said, “The law says that the Minister must refuse ‘unjust and oppressive’ extraditions. And handing Hassan over to France would definitely be unjust and oppressive. Why? A Canadian judge has already stated this case would not fly in Canada! So why force Hassan to go to France over this cooked-up case? This clearly has more to do with politics than justice. The Minister must say ‘no’ to France!”

Other speakers at the rally were Roch Tassé, Coordinator of the International Civil Liberties Monitoring Group; Dr. Monia Mazigh, human rights advocate and wife of Maher Arar; Rev. Frances Deverell, President of the Canadian Unitarians For Social Justice; and Mike Palacek, Canadian Union of Postal Workers.

• PressTV video of the event:

Ottawa Citizen video about the event

Ottawa Citizen article: Diab calls French terror extradition bid a ‘Kafkaesque nightmare’

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June 14, 2011: Dr. Diab released on bail while he appeals the extradition decision

Today, Dr. Hassan Diab was released on bail after spending more than a week in detention following the judge’s decision to commit him to extradition. He will remain on bail while he appeals the extradition decision.

Hassan’s very strict bail conditions include GPS monitoring (for which Hassan has to pay $2,000 per month), a curfew, and over a dozen sureties.

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June 6, 2011: Judge decides to commit Hassan for extradition despite “weak case”

Today, Judge Robert Maranger announced his decision to commit Hassan for extradition to France. Hassan was immediately taken to a detention centre in Ottawa.

“In his decision, the judge described the Record of the Case (ROC) provided by France as “replete with seemingly disconnected information”. The judge also noted that the ROC “contained a great deal of argument, hypothesis, conjecture, and references to information received, without describing the source of that information or the circumstances upon which it was received”.

The judge made clear that without the French handwriting analysis report, he could not have committed Hassan for extradition. This is the same handwriting report that that the judge found to be “very problematic”, “very confusing”, and with “suspect conclusions”, and described it as “susceptible to criticism and impeachment”.

In his conclusion, the judge wrote that France presented “a weak case” and that “the prospects of conviction in the context of a fair trial, seem unlikely. However it matters not that I hold this view”. The judge said he must commit because he is bound by Canada’s extradition treaty with France.

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May 26, 2011: Judge denies defence request to allow additional evidence

Today, Judge Maranger denied the request by Hassan’s lawyer to allow French handwriting experts to testify.

Judge Maranger said, “I find it difficult to conceive of how the French experts will be more critical than the experts who have already testified”.

Regarding the “Catch-22” situation of Hassan, Judge Maranger said that any assessment of how French courts handle evidence must be done by Canada’s Justice Minister during a later phase of the extradition process.

Judge Maranger said he will deliver his verdict on extradition as planned on June 6.

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May 25, 2011: Hassan’s defence seeks to introduce additional handwriting evidence

Today in court, Hassan Diab’s lawyer, Mr. Don Bayne asked Judge Maranger to allow additional handwriting experts to demonstrate the unreliability of France’s handwriting evidence. Several French handwriting experts are willing to testify that the methodology and conclusions of France’s handwriting evidence are totally flawed.

Hassan’s extradition hinges on the evidence of a French handwriting analyst, Ms. Anne Bisotti, who found similarities between five words written on a Paris hotel registration card in 1980 with samples of Hassan’s writing. Three internationally renowned handwriting experts from Canada, the U.S. and Britain, who testified at the extradition hearing were highly critical of the Bisotti report.

Basing his request on a recent ruling by the Ontario Court of Appeal in the Abdullah Khadr extradition case, Mr. Bayne also asked Judge Maranger to allow the introduction of evidence that the French legal system would not allow Hassan to effectively dispute the Bisotti report at trial in France. Hassan is in a “Catch-22” situation, Mr. Bayne said. Hassan cannot dispute the evidence against him in Canada because an extradition hearing is not a trial; and Hassan cannot dispute the evidence against him at trial in France, because the handwriting evidence would be accepted without question.

Judge Maranger said he will deliver a decision on the defence application the following day.

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March 7–9, 2011: Arguments Wrap Up in Hassan’s Extradition Hearing; Decision Expected in Early June

In his closing arguments, Dr. Hassan Diab’s lawyer, Mr. Don Bayne, launched a blistering attack on the French extradition case against Hassan. He urged Judge Maranger to toss out a case that would certainly collapse if it were presented at a Canadian criminal trial.

Mr. Bayne accused Crown prosecutors Claude LeFrançois and Jeffrey Johnston of presenting to the court “complete guesswork in the absence of evidence” and of “hopscotching around details” in an effort to make a case against Hassan.

Mr. Bayne described the French case as “guesswork in the absence of evidence”, and he said, “After you have sifted the wheat from the chaff, this is a limited to negligible case. There is little wheat left.”

The Crown prosecutors admitted that there was confusion about the colour of the suspect’s hair, which was variously described by witnesses as black, blond, brown, or dark with blond touches. The prosecutors also conceded that, had the French handwriting analysis been excluded, they would have faced “an uphill battle”.

There were heated exchanges between Mr. Bayne and the Crown prosecutors over the extensive use of secret intelligence in the Record of the Case. The sources of this intelligence are unknown to the Crown prosecutors, Judge Robert Maranger, and even to French investigators. This intelligence may be the product of torture, given France’s willingness to rely upon such information as evidence.

The prosecutors announced they are withdrawing secret intelligence from the Record of the Case, and claimed that this information is “no longer being relied upon”. This claim is misleading because elements of the case against Hassan (handwriting, hair color, passport, etc.) are manipulated and presented in such a way to fit the intelligence.

Mr. Bayne again urged Judge Maranger to make his own judgment about the French handwriting analysis, which the Judge himself has referred to as a “pseudo science” that is “problematic” and “very confusing”.

On Wednesday March 9, the last day of the extradition hearing, Judge Maranger announced that he will deliver his decision about whether to extradite Hassan on or about June 8, 2011.

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March 2, 2011: Exonerating Physical Identification Not Admitted in the Record of the Case

Defence attorney Don Bayne requested that physical identification evidence showing that Hassan is not the suspect in the Rue Copernic bombing be included in the Record of the Case.

Palm prints and fingertip prints taken from Hassan by the Royal Canadian Mounted Police (RCMP) were found not to match those of the Copernic suspect. But this information was not included in the Record of the Case, and Mr. Bayne wanted that information to be part of the Record. Judge Maranger, however, refused to admit this information on the grounds that it is “competing inference”.

Mr. Bayne also argued that a photo lineup used by the French police be entered into the Record of the Case. Those photos were shown to witnesses 30 years after the bombing. Mr. Bayne said it was impossible to assess the fairness of the photos without being able to compare Hassan’s photos with those of others shown to witnesses.

Judge Maranger agreed with Crown prosecutors who said that France is under no obligation to provide this information at an extradition hearing.

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February 28 – March 1, 2011: Hassan’s Lawyer Brings Charter Challenge against French Handwriting Evidence

Mr. Don Bayne, Hassan Diab’s lawyer, submitted a legal challenge to throw out the latest French handwriting report in the case against Hassan.

This French handwriting report came six months after French investigators had withdrawn two previous handwriting reports that were discredited after the defence showed that French investigators had relied on samples not written by Hassan.

The French handwriting report compared five words written in simplistic block letters on a Paris hotel registration card to handwriting attributed to Hassan, and concluded that there are similarities. However, three internationally renowned handwriting experts who testified for the defence concluded that the French analyst’s methodology deviated significantly from internationally recognized standards and produced conclusions that are illogical and manifestly unreliable.

Despite finding the French report to be “very problematic”, “very confusing”, and with “suspect conclusions”, Judge Robert Maranger ruled not to exclude this “evidence” from the Record of the Case, as it would violate the Extradition Act if he imposed Canadian standards on foreign evidence.

In his legal challenge, Mr. Bayne argued that reliance on the French analyst’s report as evidence for extradition violates Hassan’s rights. Hassan would not be allowed to call defence experts to rebut this “evidence” at a trial in France. Instead, the French court would accept the handwriting report’s conclusions without question.

Mr. Bayne urged Judge Maranger to protect the liberty of a Canadian citizen against injustice rather than bury his head in the sand and say, “It’s not my problem”.

Despite finding the French report to be “very problematic”, “very confusing”, and with “suspect conclusions”, Judge Robert Maranger ruled not to exclude this “evidence” from the Record of the Case, as it would violate the Extradition Act if he imposed Canadian standards on foreign evidence.

In his legal challenge, Mr. Bayne argued that reliance on the French analyst’s report as evidence for extradition violates Hassan’s rights. Hassan would not be allowed to call defence experts to rebut this “evidence” at a trial in France. Instead, the French court would accept the handwriting report’s conclusions without question.

Mr. Bayne urged Judge Maranger to protect the liberty of a Canadian citizen against injustice rather than bury his head in the sand and say, “It’s not my problem”.

Judge Maranger responded that as a Canadian extradition judge he has no jurisdiction over what might happen in a foreign court, and this is a matter for the Canadian Justice Minister to decide.

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February 18, 2011: Judge Admits “very problematic” Handwriting Analysis as Evidence

After hearing weeks of scathing expert testimony demonstrating the manifest unreliability of the French handwriting analysis, Judge Maranger stunned a packed courtroom when he ruled that he will not exclude the handwriting analysis and will use it to extradite Hassan, despite finding it “very problematic”, “very confusing”, and with “suspect conclusions”.

The French handwriting analysis purports to link Hassan to five words written on the hotel registration card that the presumptive Rue Copernic bomber filled out in 1980.

The Judge likened handwriting analysis to “pseudo-science”, and found merit in the defense argument that the flawed methodology used in the French handwriting analysis results in manifestly unreliable conclusions. However, he ruled that Canadian standards of evidence admissibility should not be used when considering foreign evidence.

Canada’s extradition law tells judges to accept evidence provided by foreign governments more or less at face value unless it’s “manifestly unreliable”. The judge said the handwriting analysis fell short of being “manifestly unreliable”, since for something to be manifestly unreliable it must be at the “extreme point” on the spectrum of reliability.

Hassan’s lawyer, Mr. Don Bayne, found it very concerning that Canada will extradite its citizens based on unreliable evidence because the test for unreliability is so high that no one can meet it. He wondered what Canadians would think of the extradition law in this country where a Judge can express grave doubts about the reliability of evidence, but still find it admissible.

The broader implication of this decision is that Canadian citizens can be shipped to foreign countries, and their liberty denied, based on very unreliable and suspect evidence that would not be used in a Canadian court, simply because a foreign country requests it. Ironically, France does not extradite its own citizens.

Court will resume on Wednesday February 23 to decide what happens next.

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January 4-7, 2011: Mr. Robert Radley Testifies about the “Totally Incorrect” Handwriting Analysis

On January 4-7, 2011, Mr. Robert Radley, the third and final defence handwriting expert, testified at Dr. Hassan Diab’s extradition hearing about the handwriting analysis submitted by French investigators. The analysis purports to link Hassan to the hotel registration card that the presumptive Rue Copernic bomber filled out in 1980.

Mr. Radley is a highly regarded British forensic document examiner with over 34 years of experience in the field. He has worked on handwriting cases from more than 30 countries and given expert testimony in legal proceedings in more than 15 countries worldwide.

Mr. Radley was extremely critical of the French handwriting analysis, describing the French report’s main conclusions as “frankly absurd—totally misguided and totally incorrect”.

Mr. Radley questioned the qualifications and professional development of the French handwriting analyst, Ms. Anne Bisotti. He was troubled and astonished by the fact that she has had only 21 hours of professional development in handwriting analysis since 1993. He stated, “I find this whole [handwriting] report unacceptable and not what I would expect from a trained, competent expert”.

Mr. Radley was also troubled by the fact that Ms. Bisotti accepted a biased mandate from the French examining magistrate that restricted her to two possible conclusions: whether Hassan “is certainly or may be” the writer of the hotel registration card that the presumed Rue Copernic bomber filled out.

Mr. Radley noted that, Ms. Bisotti’s insistence on associating Hassan with the hotel registration card, despite all of the evidence pointing away from him, demonstrates her lacelopment of the French handwriting analyst, Ms. Anne Bisotti. He was troubled and astonished by the fact that she has had only 21 hours of professional development in handwriting analysis since 1993. He stated, “I find this whole [handwriting] report unacceptable and not what I would expect from a trained, competent expert”.

Mr. Radley was also troubled by the fact that Ms. Bisotti accepted a biased mandate from the French examining magistrate that restricted her to two possible conclusions: whether Hassan “is certainly or may be” the writer of the hotel registration card that the presumed Rue Copernic bomber filled out.

Mr. Radley noted that, Ms. Bisotti’s insistence on associating Hassan with the hotel registration card, despite all of the evidence pointing away from him, demonstrates her lack of objectivity. Ms. Bisotti “swept under the carpet” fundamental differences between Hassan’s writings and those on the hotel registration card. “When you have so many differences,” Mr. Radley said, “you’ve got to take into account the possibility of another writer… all the evidence points in the other direction [away from Hassan Diab]”.

Mr. Radley is familiar with the European Network of Forensic Handwriting Experts (ENFHEX), a set of standards which Ms. Bisotti claims to have relied upon for her analysis. Mr. Radley observed that Ms. Bisotti’s methods contradict ENFHEX standards. Mr. Radley cited numerous basic and serious mistakes in Ms. Bisotti’s methodology, and commented that Ms. Bisotti “condemned herself by her own pen”. He also noted that she had conducted a very superficial examination using scanned copies even though she had access to the originals.

In his technical review of the French handwriting analysis, Mr. Radley concluded, “In over 30 years of dealing with casework and having to produce critiques on literally hundreds of Police Laboratory reports, I have never had to express criticism in such robust terms. I wish to stress that this not because I have been hired by one side or the other side but this is a truly held reflection of the review, such is the degree of unacceptability of virtually the entirety of the report.”

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December 20-22: Mr. John Paul Osborn Testifies about the “Wholly Unreliable” Handwriting Analysis

On December 20-22, 2010, Mr. John Paul Osborn, the second of three handwriting experts for the defence, testified about the manifest unreliability of the French handwriting report.

Mr. Osborn is a highly regarded forensic document examiner with over 28 years of experience. He is certified by the American Board of Forensic Document Examiners, and served as member of the FBI/National Institute of Justice Scientific Working Group that was set up to develop protocol in the field of handwriting analysis.

On December 20-22, 2010, Mr. John Paul Osborn, the second of three handwriting experts for the defence, testified about the manifest unreliability of the French handwriting report.

Mr. Osborn is a highly regarded forensic document examiner with over 28 years of experience. He is certified by the American Board of Forensic Document Examiners, and served as member of the FBI/National Institute of Justice Scientific Working Group that was set up to develop protocol in the field of handwriting analysis.

In his testimony, Mr. Osborn pointed out that the French examining magistrate gave the French handwriting analyst, Ms. Anne Bisotti, a biased mandate which clearly limited her to two possible conclusions — whether Hassan “is or may be” the writer of the five words on a hotel registration card from 1980.

Mr. Osborn stated that the direction “by a government official to subordinate laboratory personnel in this fashion clearly sets forth the expectation of some form of identification and creates a clear bias”. The biased mandate was compounded by the fact that Ms. Bisotti not only accepted the instructions but also placed them at the beginning of her report. This, according to Mr. Osborn, sets “a fatal tone of subjectivity and bias” throughout her report.

Mr. Osborn also testified that the methodology used by Ms. Bisotti is wholly unreliable, seriously flawed, illogical, and utterly unrecognized in the field. Mr. Osborn was especially critical of Ms. Bisotti’s approach to the seven differences she found between Hassan’s handwriting and the handwriting on the hotel registration card. Mr. Osborn pointed out that “[w]hile it can be clearly established that the number of differences present between the two groups of writing far exceed the seven she has identified, the presence of just the small group of differences she did find undoubtedly should cause the objective and unbiased forensic document examiner to conclude the writings are the product of different individuals.”

Mr. Osborn also noted that Ms. Bisotti rendered her conclusions regarding the authorship of the document in question in terms of “presumptions”. The use of such a term in a handwriting report is so unusual — he has never seen it used in his 28 years of practice. Mr. Osborn stated that the French handwriting analyst already started her assignment with the presumption that Hassan is the writer of the document in question rather than from a neutral standpoint as is the protocol in the field.

On cross-examination, Mr. Osborn strongly disagreed with the Crown prosecutor’s characterization of Ms. Bisotti as a qualified handwriting expert. Mr. Osborn pointed out that Ms. Bisotti’s CV does not qualify her at all to do handwriting document examination, and shows lack of accepted experience and limited court experience.

Mr. Osborn also dismissed the Crown prosecutor’s argument that defense handwriting experts cannot critique the French handwriting report since the latter is based on “French methodology”. Mr. Osborn pointed out that the methodology in the field of handwriting analysis has already been established worldwide for decades. It is nonsensical to suggest that France has its own methodology that is different from the international standard, including that adopted by other European countries.

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December 15-17, 2010: Crown Prosecutor Cross-Examines Defence Handwriting Expert, Mr. Brian Lindblom

On December 15, 2010, Crown prosecutor Claude LeFrancois commenced several days of cross-examination of defence handwriting expert Mr. Brian Lindblom.

The Crown prosecutor tried to discredit the qualifications and experience of the renowned expert. Mr. LeFrancois opined that Mr. Lindblom could not critique the work of the French handwriting analyst, Ms. Anne Bisotti, because he has not worked in France. Mr. Lindblom responded that handwriting analysts operate according to established international standards and methodologies. Mr. Lindblom went on to describe the European standard that Ms. Bisotti claimed to rely on, and he showed how her work deviates significantly from the standard and procedure she claims to use.

The cross-examination quickly turned into personal attacks on Mr. Lindblom, including suggestions that Mr. Lindblom does not understand English and that he had “taken the money and run” as an expert witness in another legal proceeding. This line of questioning prompted Judge Maranger to advise the Crown prosecutor against making inappropriate remarks.

Midway through cross-examination, the Crown prosecutor attempted to re-argue the Judge’s decision allowing testimony from defence handwriting experts. Mr. LeFrancois asked Judge Maranger to adjourn the proceedings for several hours to reconsider his decision. Judge Maranger advised Mr. LeFrancois to finish the cross-examination.

The Crown prosecutor also queried Mr. Lindblom about the type of instructions he had received from defence counsel, his discussions with other experts, and his knowledge of the case. The Crown repeated each question many times, and stated that he is doing so because he is not getting the answers he wants.

In light of the 15-year gap between handwriting samples attributed to Hassan Diab and the questioned document, the Crown prosecutor asked Mr. Lindblom whether he agrees with the French analyst’s claim that it is reasonable to analyze handwriting samples that are 15 years apart. Mr. Lindblom strongly disagreed with this assertion and cited numerous authorities that warn against using non-contemporaneous samples.

The Crown prosecutor also directed Mr. Lindblom’s attention to certain letters in the questioned document and sample documents, which the Crown believes to be similar. Mr. Lindblom stated that the letters are actually fundamentally different.

The testimony of Mr. Lindblom is expected to conclude on Monday December 20.

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December 13-14, 2010: Mr. Brian Lindblom Testifies about the “Patently Unreliable” Handwriting Analysis

On December 13-14, 2010, Mr. Brian Lindblom, a highly regarded forensic document examiner with 28 years of experience and weighty professional credentials, testified in court about the handwriting analysis submitted by French investigators. The analysis purports to link Hassan to the hotel registration card that the presumptive Rue Copernic bomber filled out in 1980.

The Crown prosecutors have described this handwriting analysis as a “smoking gun” and the “evidence” on which the extradition case stands or falls. So Hassan’s supporters and members of the forensic document analysis community packed the court, eager to hear how the French handwriting report measures up.

In his testimony, Mr. Lindblom asserted that the French report is patently unreliable and no forensic document examiner using accepted professional methods could reach the conclusions put forward in the report. He showed that Ms. Anne Bisotti, the French handwriting analyst, used unconventional methods, some of which clearly contradict accepted procedures in a manner that “sets the stage for unreliable and erroneous conclusions”.

Among the glaring issues were Ms. Bisotti’s inaccurate characterizations of handwriting samples, her affirmation that handwriting specimens separated by 15 years can still be compared accurately, her willingness to cross-compare printed, cursive, and numeric types of handwriting, her reliance on the notion of “natural variation” to dismiss significant empirical differences in handwriting, particularly in the structure of letter formation, all of which violate basic professional standards in the field. The cumulative impact of these analytical mistakes, Mr. Lindblom stated, is that he has “grave concerns” about Ms. Bisotti’s qualifications as an analyst and that her methods cannot lead to reliable findings.

For example, in Ms. Bisotti’s report she asserted that she cannot assess the letter “X” since it is not found in the document in question. This is despite the fact that the letter “X” is found in the word “ALEXANDER” which appears on the hotel registration card. Moreover, the analyst’s gross misrepresentations of the slope of many letters, and her incorrect observations have profound negative effects on the reliability of her conclusions.

Ms. Bisotti failed to note differences in the writing on the hotel registration card and samples attributed to Hassan. These differences would prevent any competent handwriting expert from ever positively associating Hassan with the card. Mr. Lindblom found it shocking and bizarre that the French handwriting analyst deviated so significantly from established methodologies in the field of handwriting analysis.

Mr. Lindblom questioned Ms. Bisotti’s qualifications as a handwriting analyst. Her resume shows that she has had only 21 hours of professional development in handwriting analysis since 1993. There is no evidence of the apprenticeship and certification that are required of a credible practitioner.

Of great concern was the biased mandate that the French examining magistrate gave Ms. Bisotti. The mandate asked that she determine whether Hassan “is certainly or may be” the writer of the hotel registration card, without leaving room for a negative, exculpatory option. Mr. Lindblom said that in his career, he had never seen such a slanted mandate and that had it been given to him, he would have responded, “don’t tell me what to say”. Nonetheless, the conclusion of Ms. Bisotti confirmed the “presumption” that Hassan filled in the hotel registration card. Mr. Lindblom stressed that a professional forensic document analysis assesses evidence probabilistically, and does not restate “presumptions” as if they were empirical conclusions.

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December 6, 2010: Court Allows Hassan’s Defence to Call Handwriting Experts

Today, the Court ruled that Dr. Diab’s defence may call three handwriting experts to testify regarding the unreliability of the handwriting analysis submitted by French investigators.

The three handwriting experts, Brian Lindblom, John Paul Osborn, and Robert Radley, are the same handwriting experts whose critiques of handwriting reports previously submitted by French investigators prompted the investigators to withdraw their reports and delay the extradition proceedings for nearly a year.

The Judge indicated that he wants to hear the defense handwriting evidence in full before deciding whether it renders the French handwriting analysis unreliable.

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November 29 – December 3, 2010: Court Hears Arguments Regarding Admissibility of Defence Handwriting Evidence

Dr. Hassan Diab’s lawyer, Mr. Don Bayne, filed an application with the Superior Court seeking to admit reviews by three renowned handwriting experts of the handwriting analysis submitted by French investigators.

Prior to commencing the defence’s admissibility arguments, the court addressed French-to-English translation issues. Within a few days of receiving the experts’ reviews, the Crown prosecutor had initiated a flurry of correspondence with the translation service seeking to change the translation of certain words. Mr. Bayne pointed out that the court had already stated on previous occasions that the Crown prosecutor cannot act as a translator and should not be suggesting to the translation service how to translate words.

Mr. Bayne sought to call the three handwriting experts, Brian Lindblom, John Paul Osborn, and Robert Radley. These are the same handwriting experts whose critiques of handwriting reports previously submitted by French investigators prompted the investigators to withdraw their reports and delay the extradition proceedings for nearly a year.

Mr. Bayne stated that France’s new handwriting report is at least as unreliable as the withdrawn ones and suffers from numerous serious flaws.

  • The French handwriting analyst accepted a biased mandate from the French examining magistrate that instructed her to find whether Dr. Diab is or may be the writer of the questioned document, with no consideration given to the possibility that Hassan may not be the writer of the questioned document. This set a fatal tone of subjectivity and bias throughout the analyst’s report.
  • The analyst ignored many significant structural differences between the questioned document and what is purported to be Hassan’s handwriting. In the times she acknowledged the presence of differences, she dismissed them as “natural variations”. Mr. Osborn notes that “[w]hile it can be clearly established that the number of differences present between the two groups of writing far exceed the seven she has identified, the presence of just the small group of differences she did find undoubtedly should cause the objective and unbiased forensic document examiner to conclude the writings are the product of different individuals.”
  • The approach used by the analyst flies directly in the face of logic and established methodology in the field of handwriting analysis. Mr. Lindblom notes that she has used “unconventional examination and comparison methods, some of which are in clear contradiction to well-documented and tested analytical techniques.” Mr. Lindblom also notes that the French handwriting analyst’s “failure to properly evaluate the character’s structure leads [him] to seriously question her ability to recognize both gross and subtle elements in the design of letters and numerals.”
  • The analyst reported conclusions in the form of “presumptions”, a term that is not recognized in handwriting analysis. Presumptions are pre-conceived assumptions rather than conclusions based on actual evidence. Mr. Radley finds “the methodology, and consequently any opinions based thereon, fatally flawed and lacking in objectivity, reliability and accuracy.”

Handwriting experts for the defence also note the inadequacy of the analyst’s qualifications. In her professional development since 1993, she has had only 21 hours in expert analysis and these were completed in 1996.

The Crown prosecutors urged the judge not to allow the defense to call handwriting experts and to rely exclusively on the opinion of the French handwriting analyst. The Crown prosecutors claimed that the defense can challenge expert “evidence” submitted by a requesting state in two cases only: (a) if the defense can show that the French handwriting analyst does not exist; (b) if the defense can show that the French handwriting analyst is a child. In all other cases, the judge has no discretion to allow the defense to call experts.

In response, Mr. Bayne directed the court to passages in recent rulings by the Supreme Court of Canada and the Ontario Court of Appeals that make clear that the person facing extradition has the right to introduce evidence that shows the unreliability of key parts of the case against him or her.

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November 24-25, 2010: Expert Witness Kent Roach Testifies on Intelligence Versus Evidence

On Wednesday and Thursday, November 24 and 25, 2010, the court heard testimony from noted Toronto University Law Professor and anti-terrorism expert Kent Roach.

Professor Roach told the court that the intelligence in the Record of the Case does not meet Canadian standards as evidence, and that aspects of the case set off “alarm bells” for him. For example, intelligence reports changed over a one-month period in 2008 to suggest first that Hassan entered France from Spain using his own passport, then suggesting that Hassan entered France using a fake passport.

“It would suggest to me the intelligence record is unreliable because it is malleable enough to fit any or both scenarios. Because it is not sourced, because it is not circumstanced, it is very difficult to go behind their suppositions and to challenge the intelligence”, Professor Roach said. He added that relying on intelligence as evidence to extradite Hassan is especially concerning since his liberty is at risk.

Professor Roach warned of the dangers of relying on unsourced intelligence of unknown and untestable reliability as evidence. He told the court that intelligence is gathered under a cloak of secrecy, is used to inform governments of possible security threats, and is frequently the subject of analysis and opinion. In contrast, evidence is obtained from sources that are identified and that can be challenged in court. It is impossible to go behind intelligence to test its reliability. It is immune to adversarial challenge. Hence, it would be dangerous to rely upon it to deprive Hassan of his liberty.

Professor Roach also worried that French investigators have developed “tunnel vision” — when investigators interpret ambiguous evidence as evidence of guilt, even when completely different behaviour could also support guilt.

He said the Record of the Case also raised concerns for him about “boot-strapping,” where one piece of unreliable intelligence is linked to another and considered corroborated, and the “cherry picking” of certain pieces of intelligence that fit the theory of the case while ignoring other intelligence that could help Hassan.

Professor Roach said the intelligence in the Record of the Case appears to come from foreign services. He noted that intelligence passed to the French by unnamed foreign services would not include information about the sources or methods used to gather the information, including whether the information was extracted using torture. A person who is tortured or threatened with torture may falsely implicate others or may falsely implicate him or herself. Professor Roach also said he is aware that evidence derived from torture has been used in French legal proceedings.

Professor Roach noted the similarities between the case of Maher Arar and and that of Hassan Diab. Mr. Arar was deported to Syria where he was tortured, based on faulty intelligence. “It is easy to assert someone is a member of a terrorist organization. It is an entirely different matter to prove it through evidence,” Professor Roach said.

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November 23, 2010: Abuse of Process Arguments Wrap Up

On Tuesday November 23, 2010, Dr. Hassan Diab’s defence wrapped up arguments to stay (halt) Hassan’s extradition hearing on grounds that French investigators have abused the Canadian extradition process.

Defence attorneys Ian Carter and Don Bayne reiterated key points of law and evidence. They reminded the court that extradition proceedings can be halted if the court finds that French investigators have abused the process, either through a lack of due diligence or by deliberately manipulating the material in the Record of the Case.

The Record of the Case is replete with serious misrepresentations that reveal a complete lack of due diligence. The situation is further aggravated by French investigators’ failure to correct a single misrepresentation, despite having been put on notice by the defence more than a year ago.

Mr. Bayne reminded the court of the immense advantages granted to foreign states by Canada’s Extradition Act, including a presumption of good faith, no need for sworn affidavits, and presumptive reliability of the certified Record of the Case. These advantages obligate foreign officials to exercise utmost care and due diligence in preparing extradition requests.

Good faith is both a presumption and a duty. This presumption can be rebutted by evidence showing bad faith or lack of due diligence. For example, French investigators have advanced two contradictory theories about the passport evidence, and the defence has disproven both theories.

Mr. Bayne and Mr. Carter also showed that case law and arguments presented by the Crown prosecutors are not on point. Case law the Crown claims supports the right of foreign states to omit, edit out, cherry-pick, or bury exonerating evidence was presented out of context.

The Crown had repeatedly misrepresented the defence as calling on French investigators to include all evidence in their possession (“everything but the kitchen sink”) so as to bring exculpatory evidence to light. Mr. Bayne responded that while French investigators may select their evidence, once they choose to rely on a particular source they must present the information from this source in a full, frank, and fair manner.

Mr. Bayne reminded the court that secret intelligence at the heart of the case against Dr. Diab comes from unnamed foreign services. The sources and circumstances in which the intelligence information was gathered are utterly unknown. Since it is virtually impossible for Hassan to prove that this information came from torture, it is incumbent upon French authorities to provide assurances that the information is not derived from torture. Torture is not only illegal, but is also morally reprehensible. Absent such assurances from the French authorities, extradition of Dr. Diab represents the ultimate abuse of the Canadian legal process.

Mr. Bayne told the court that the Crown’s responses to the specific misrepresentations did not rely on any evidence. Instead, the Crown had resorted to speculation and alternative hypotheses to explain away the misrepresentations. This amounts to heaping one speculation upon another, since much of the Record of the Case itself consists of hypotheses and suppositions. This stands in sharp contrast to the summary of facts and evidence that an extradition request is supposed to contain.

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November 16-22, 2010: Crown Prosecutors Respond to Defence’s Abuse of Process Application

The Abuse of Process phase of Hassan Diab’s extradition hearing continued on Tuesday, November 16, with the Crown prosecutors arguing to dismiss the defence’s application. Arguments presented by the Crown prosecutors ran through Monday, November 22.

Crown prosecutor Claude LeFrancois called defence attorney Don Bayne’s evidence “insufficient” and his arguments “laughable”. Reminding the court that the French examining magistrate in charge of the case “is a busy man” with national jurisdiction over a country of 65 million inhabitants, Mr. LeFrancois sought to downplay “inconsistencies” in the Record of the Case as “simple and innocent mistakes”.

Crown prosecutors also argued that France has no obligation to disclose contradictory or exculpatory information (i.e. showing Dr. Diab’s innocence), including results of fingerprint and palm print comparisons that exonerate Hassan. In the words of Crown prosecutor Jeffrey Johnston, “France is entitled to cherry pick its evidence”.

In response to the multiple serious misrepresentations identified by the defence, Crown prosecutors offered speculation and hypotheses.

  • Regarding the many instances in which French investigators have omitted, buried, or edited out exonerating evidence. Mr. Johnston took the position that France is under no obligation to present exculpatory evidence. This is despite the case law that the defence had pointed to showing that the requesting state has an obligation to provide “full, frank, and fair” representation of the evidence.
  • Regarding contradictory theories about the passport evidence, Mr. LeFrancois asserted that materials submitted by France 29 days prior to certifying the Record of the Case cannot be presumed reliable. This is despite the fact that these materials were supported by sworn affidavits from the RCMP.
  • Regarding the possibility that unsourced intelligence in the case against Dr. Diab may be derived from torture, Mr. Johnston insisted that the onus is on Dr. Diab to prove torture. This is despite United Nations agreements signed by France and Canada that place the onus on states to provide assurances that evidence was not obtained using torture.
  • Regarding the French magistrate’s reliance on sheer argument in place of evidence at various points throughout the Record of the Case, Mr. Johnston asserted that the Extradition Act allows French investigators to certify whatever they wish.

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November 15, 2010: Hassan’s Lawyer Finalizes Presentation of Serious Misrepresentations in the Case and Calls for Stay of Proceedings

On Monday, November 15, 2010, nearly 50 supporters showed up in court to hear Dr. Diab’s lawyer, Mr. Don Bayne, present:

  • The last three misrepresentations (7, 8, and 9) in the case against Hassan;
  • Abuse related to failure to disclose that Hassan’s palm and fingerprints do not match those of the suspect;
  • Abuse related to reliance on unsourced intelligence without providing assurances to the Canadian court that it is not the product of torture.

Misrepresentation #7. Mr. Bayne demonstrated that French investigators manipulated testimony from Hassan’s ex-wife to give the false impression that she was hiding the existence of an uncle who is a known terrorist. Mr. Bayne provided the court with transcript evidence showing that Hassan’s ex-wife has no such uncle. Even though she gave the full names of all her aunts and uncles during her testimony, the French investigators manufactured a fictitious relationship between Hassan’s ex-wife and the known terrorist by combining the first name of an uncle on one side of the family with the surname from the other side of the family.

Misrepresentation #8. Mr. Bayne demonstrated how a stamp on Hassan’s 1980 lost passport that was illegible from 1999 through February 2008 miraculously and conveniently became legible when the Record of the Case was certified in December 2008. Mr. Bayne noted how odd this is especially that other illegible stamps remain illegible up to the present.

Misrepresentation #9. Mr. Bayne noted a number of abusive misrepresentations in relation to evidence collected from two individuals held in French police custody in 1988.

  1. The Record of the Case misleadingly describes the individuals as being “witnesses” who were “interviewed”, but they were actually held incommunicado for four days and interrogated relentlessly, day and night, under harsh and coercive “garde à vue” conditions.
  2. The Record asserts that one of the supposed “witnesses” (who had known Hassan in his university days) is a former member of the PFLP-SO. However, Mr. Bayne pointed out that the actual interrogation transcript of this “witness” shows this characterization to be completely unfounded on evidence.
  3. The Record characterizes the above interrogations as centering on Hassan. However, the actual transcript of the interrogations makes clear that Hassan’s name only arose incidentally as one of many names in the address book of the interrogated “witness”.

Failure to disclose palm print and fingerprint results. French investigators hid from the Canadian court the fact that a palm print obtained from the car allegedly used to store the explosives did not match Hassan’s palm print. The French investigators have known about the negative match for two years but failed to disclose this important exculpatory evidence. The French investigators also obtained Hassan’s fingerprints and compared them to unidentified fingerprints on a document signed by the suspect. Here too, the French investigators had known about the negative match for about one year but failed to disclose this exculpatory evidence to the Canadian court.

Failure to provide assurances that intelligence is not the product of torture. The Record of the Case is replete with unsourced, uncircumstanced, anonymous, untestable intelligence material. This is compounded by the fact that French investigators have not provided any assurances to the Canadian court that the intelligence is not the product of torture. Canada’s obligations makes it clear that it is the duty of the requesting state to provide reasonable assurances that the intelligence was not obtained through torture or other cruel, inhuman, or degrading treatment or punishment.

In his summation, Mr. Bayne called for a stay of the extradition proceedings. He noted that the numerous and serious manipulations of the actual evidence form a consistent and deeply offensive pattern of misrepresentations that would result in an unfair extradition hearing for Dr. Diab. These flagrant and repeated breaches of fairness and good faith constitute an assault on the integrity of the court’s extradition process.

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November 12, 2010: Hassan’s Lawyer Continues Demonstration of Serious Misrepresentations in the Case

The Abuse of Process phase of Hassan Diab’s extradition hearing continued on Friday, November 12, 2010. Defence attorney Don Bayne resumed his demonstration of the multiple major misrepresentations, overstatements, misstatements, omissions, inaccuracies and self-serving editing that fill the case against Hassan and that result in a misleading, incomplete, unreliable and unfair Record of the Case.

Misrepresentation #2. Mr. Bayne refuted French investigators’ assertions that a 1981 bombing in Antwerp, Belgium, is “similar fact evidence”. Mr. Bayne revealed that French investigators edited key facts out of the Record of the Case to conceal from the Canadian court significant differences disproving a link between these two attacks. This includes the fact that the Belgian authorities believed that the Antwerp attack could very well be an anti-capitalist attack against the diamond district, rather than an anti-Semitic attack against a synagogue.

Misrepresentation #3. Mr. Bayne discredited the French investigators’ assertion that they have intelligence from a “reliable source” that a certain person belonging to PFLP-SO performed surveillance in Paris in advance of the 1980 bombing. Mr. Bayne presented documents from the French intelligence service showing that the service itself believes that the above claim is erroneous. According to the service, the person in question was actually undergoing lengthy recovery in a hospital during the time period in question.

Misrepresentation #4. Mr. Bayne showed that French investigators selectively cite intelligence information, reported in a one-page newspaper article, that fits their theory. However, they omit other intelligence information cited in the same article that undermines and contradicts their theory.

Misrepresentation #5. Mr. Bayne provided evidence showing how intelligence information was manipulated. In documents put before the Canadian court in November 2008, the French investigators asserted that when they received the unsourced 1999 intelligence, Hassan was not known to be a member of any terrorist group. However, this was later changed in documents put before the Canadian judge for the extradition hearing. In the Record of the Case, the French investigators claim that the 1999 intelligence seems likely because Hassan was “already known” in 1999 to be a member of the PFLP-SO assigned to cells to carry out terrorist attacks. Not only is this not true, but there is also strong evidence to the contrary that was ignored.

Misrepresentation #6. Mr. Bayne demonstrated once again how the French investigators cherry-pick their “evidence”. The Record of the Case relies on information received by a French journalist who allegedly met one of the persons implicated in the 1980 attack. However, the Record of the Case deliberately omits other parts of the information received by the journalist and which includes the names of the motorcycle buyer and his accomplice – none of whom is named Hassan. The inconvenient information is edited out, conveying a false picture of information received as to the identities of those responsible.

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November 8-10, 2010: Hassan’s Lawyer Demonstrates Serious Misrepresentations in the Case against Hassan

On Monday November 8, 2010, the Abuse of Process phase of Hassan Diab’s extradition hearing started. This week Hassan’s lawyer, Mr. Don Bayne, demonstrated to the Ontario Superior Court that the case against Hassan is filled with major misrepresentations, overstatements, misstatements, omissions, inaccuracies and editing that create a misleading, incomplete, unreliable, and unfair case.

A packed courtroom heard Mr. Bayne argue that the French “evidence” is so deeply flawed that it demonstrates at the very least a complete failure of due diligence and at the most a deliberate attempt to manipulate the material to create a false, damaging picture of Hassan. These violations offend the community’s sense of fair play and decency. French investigators have abused Canada’s extradition process to such an extent that the only appropriate remedy is to stop Hassan’s extradition hearing. A stay of the extradition hearing is also necessary to preserve the integrity of the Canadian court and its process.

On Monday and Tuesday, Mr. Bayne presented case law supporting the request for a permanent stay. In the past, extradition required sworn affidavits. This was deemed essential to protect the liberty of the individual sought. Under Canada’s current extradition law which was implemented in 1999, the requesting state only needs to submit a summary of the “evidence” which is presumed to be reliable.

The Crown prosecutors, acting on behalf of the French investigators, argue that the latter are under no obligation to present exculpatory evidence (i.e. evidence showing innocence). This is despite the fact that the Ontario Superior Court and the Ontario Court of Appeals have ruled in previous extradition cases that “full, frank and fair disclosure must form the cornerstone of the Record of the Case and, minimally, that there is no room for lack of diligence and care, even if it were inadvertent or misguided.”

Misrepresentation #1. On Wednesday, Mr. Bayne demonstrated how the intelligence and the supposed key passport “evidence” was manipulated and is entirely without merit.

In documents submitted to the court in November 2008, the French examining magistrate claimed that according to intelligence the suspect used his real passport to enter France.

Since Hassan’s 1980 passport does not contain any entry stamps to France, this claim was later altered. Less than a month later, the same French examining magistrate claimed that according to intelligence the suspect entered France from Spain using a false Cypriot passport.

Mr. Bayne argued that not only did French investigators change the intelligence claim, but that the new version of the intelligence does not fit the evidence either. Mr. Bayne pointed to a 1980 French police report that shows that the suspect’s false Cypriot passport was not used to enter France.

French investigators turned objective exculpatory evidence (Hassan’s 1980 passport) that proves Hassan was not in France at the time of the bombing into incriminating evidence by making the passport “fit” the new version of the intelligence.

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October 15, 2010: Hassan’s Lawyer Seeks To Have Deliberately Manipulated Extradition Case Tossed Out

Today, Dr. Hassan Diab’s lawyer, Mr. Don Bayne, filed with the court important documents that detail how unsourced “intelligence” and other materials used to justify the extradition request have been deliberately manipulated to falsely implicate Dr. Diab. The documents also show how exonerating evidence has been concealed from the Canadian court. Mr. Bayne is seeking to have the case against Dr. Diab tossed out.

The misleading and unfair case against Dr. Diab undermines the integrity of the Canadian court system and demonstrates how Canada’s extradition law fails to honor Canada’s Charter of Rights and Freedoms.

Arguments on the Abuse of Process motion will be heard in the Ontario Superior Court beginning on Monday November 8, 2010.

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August 30, 2010: Hassan’s Defence Submits an Abuse of Process Application

On Monday August 30, 2010, Hassan Diab’s defence submitted to the court an application detailing how the case against Dr. Diab fell far below an acceptable standard and constitutes an abuse of process and a breach of the principles of fundamental justice.

Hassan’s lawyer, Mr. Ian Carter, argued that France failed to exercise due diligence in ensuring that the writing samples provided to its analysts were, in fact, written by Hassan. Four leading handwriting experts retained by Hassan’s defence all agree that it is standard practice to intercompare all handwriting samples to determine that they were actually written by the same person. Failure to do so constitutes a flagrant and manifest deviation from established methodologies.

In spite of the fact that comparison samples were written by more than one person, the French handwriting analysts concluded that they matched the writing on the hotel registration card. This significant error alone would be enough to completely undermine the reliability of the French reports.

Hassan’s lawyer was equally troubled by the response of France and the Attorney General of Canada to the serious problems exposed in the French analysts’ conclusions. Rather than recognize the significant shortcomings in the analysts’ conclusions, the Crown prosecutor opposed the introduction of defence evidence demonstrating these shortcomings. The purpose of doing so was to leave France’s flawed handwriting evidence in the Record of the Case unchallenged, and use it as a basis for alleging a link between Hassan and the 1980 attack.

After Judge Maranger ruled on December 11, 2009, to admit the defence handwriting evidence, the Crown prosecutor requested a lengthy adjournment which caused the collapse of the extradition hearing set for January 2010. Judge Maranger set reporting dates for the Crown prosecutor to inform the court what France intended to do regarding the case against Dr. Diab.

At each of the reporting dates, the Crown prosecutor kept the court and Hassan’s defence in the dark and did not inform them that France had sought another handwriting opinion on December 15, just a few days after Judge Maranger admitted the defence handwriting evidence.

In the meantime, the flawed handwriting evidence remained in the Record of the Case until mid-May 2010, just a few weeks before the extradition hearing was set to begin. This caused the June extradition hearing date to collapse, and the hearing is now scheduled to begin in November 2010.

Hassan’s defence argued that the misconduct of France in certifying unreliable evidence without due diligence, opposing the introduction of evidence demonstrating its unreliability, and then refusing to inform the court that it intended to pursue a new opinion which would cause the extradition hearing dates to collapse constitute an abuse of process.

As remedy for the abuse of process, Hassan’s defence requested that the new French handwriting opinion be excluded from the Record of the Case, especially given France’s poor track record of providing the court with reliable handwriting evidence.

On Wednesday September 1, 2010, Judge Maranger ruled that France’s behavior does not amount to an abuse of process. Maranger stated that while he shared the defence’s frustration with the timing of France’s decision to introduce new handwriting evidence, he found that France’s conduct “does not amount to a complete failure of due diligence”.

Hassan’s lawyer, Mr. Don Bayne, informed the court and the Crown prosecutor that the defence will challenge the reliability of the new handwriting report which is “at least as lacking as the other two” which were withdrawn by France. In addition, Mr. Bayne said he will file another abuse of process application to stay the entire extradition proceedings at the outset of the hearing in November. The new abuse application will be based on other parts of the Record of the Case, and will demonstrate France’s complete failure of due diligence in preparing its case.

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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 prosecutor 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 prosecutor 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.

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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 prosecutor’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 prosecutor 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 prosecutor 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, Judge 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.

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May 17, 2010: France Withdraws Discredited Handwriting Reports; Extradition Hearing Delayed Again

After standing by the handwriting reports of two French “experts” for more than 18 months, the Crown prosecutor 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 prosecutor 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 prosecutor 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 prosecutor 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 prosecutor 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.

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March 29, 2010: Again, No Change in Status

Today, and for the third time, Crown prosecutor 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”.

Judge Maranger pressed Mr. LeFrancois for more details. However, the Crown prosecutor 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 prosecutor, since the legal fight will be costly. However, the defence reserved the right to revive the application if France asked for further adjournment.

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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 prosecutor 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, Judge 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.

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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 prosecutor 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.

Judge 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.

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December 18, 2009: Extradition Hearing Delayed for Months

Today, Assistant Crown prosecutor 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.

Judge 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.

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December 11, 2009: Evidentiary Hearing – Oral Decision

Today, Judge 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.

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December 10, 2009: Evidentiary Hearing – Day 5

Today, Assistant Crown prosecutor 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, Judge 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.

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December 3, 2009: Evidentiary Hearing – Day 4

Today, Assistant Crown prosecutor 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, Judge 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.

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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 examining 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.

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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 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.

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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.

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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!

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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 court.

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.

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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.

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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.

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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.

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June 26, 2009: Court of Appeal Upholds Dr. Diab’s Bail

The Crown prosecutor appealed Judge 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.

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June 2, 2009: Extradition Hearing Scheduled

Ontario Superior Court Judge 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.

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May 29, 2009: Crown To Appeal Dr. Diab’s Bail

The Crown prosecutor is seeking to appeal the bail of Dr. Hassan Diab.

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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.

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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.

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October 2007: Dr. Hassan Diab Approached by a Reporter from Le Figaro

A reporter from the French daily newspaper Le Figaro approached Hassan after his class at the University of Ottawa, and asked Hassan whether he was aware that the French authorities believed he was responsible for the 1980 Paris Copernic attack. Hassan was astonished by the reporter’s question and denied any responsibility, stating that any connection to the attack must be purely coincidental, since “Hassan Diab” is a common name.

In spite of this, Hassan remained in Canada and continued his normal activities, including teaching at the University of Ottawa and Carleton University.

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About Dr. Hassan Diab

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