If extradited to France, Hassan would be tried under France’s anti-terrorism laws where secret intelligence from unknown sources is admitted as evidence. In Dr. Diab’s case, no one – not even the French judge – knows where the intelligence came from, the circumstances under which it was obtained, and whether or not it has any reliability. There is a real risk that this intelligence is the product of torture.
Also alarming is the fact that a discredited handwriting analysis report remains in the dossier in France. The report claims that Dr. Diab’s handwriting resembles five words written by the suspect on a hotel registration card in 1980. Five internationally renowned handwriting experts found that the report is fatally flawed, utterly unreliable, and does not follow recognized methodology; in fact, the experts found that the evidence points to Dr. Diab’s innocence. The extradition judge himself described the report as “very problematic”, “convoluted”, “very confusing”, and “suspect”, but stated that he felt obliged under Ontario’s interpretation of the extradition law to commit Dr. Diab for extradition. It is worthwhile to note that two previous handwriting analysis reports that allegedly linked Dr. Diab to the suspect were withdrawn from the extradition hearing in Canada after Hassan’s lawyers showed that many of the documents that were “matched” to the suspect were not written by Hassan, but rather by someone else. While the French authorities withdrew these two reports from the extradition hearing in Canada, they too remain in the dossier in France.
Questions of Public Importance Raised by Dr. Diab’s Case
Hassan’s lawyers urged the Supreme Court of Canada to hear Dr. Diab’s appeal to resolve two constitutional questions of public importance.
The first question relates to the correct interpretation of Ferras, the leading Supreme Court case on extradition. Appellate courts in Canada are deeply divided on this issue. Dr. Diab’s lawyers argue that Dr. Diab would have been discharged if his case were heard in British Columbia, given that the British Columbia Court of Appeal requires extradition judges to deny extraditions in cases, like Dr. Diab’s, in which the evidence as a whole is so unreliable that it would be unsafe to convict. In contrast, the Ontario Court of Appeal follows a more restrictive test, which limits the task of the extradition judge to examining individual pieces of evidence to determine whether they are “manifestly unreliable”. It does not permit extradition judges to weigh inferences, evaluate the strength of the case put forward, or deny extradition where the judge felt the case to be weak or a conviction unsafe.
The second question is about protections afforded to Canadians by the Charter. It centers on whether a criminal trial which is based in part on anonymous intelligence that cannot be meaningfully tested ever meets the requirement of a fair process. If extradited to France, Dr. Diab would be tried on the basis of an anonymous intelligence report that no one – not even the French judge – knows where it came from, the circumstances under which it was obtained, and whether it has any reliability.