By Maeve McMahon
Associate Professor, Law and Criminology, Carleton University, Ottawa, Canada
August 2012
As a social scientist and criminologist with knowledge about certain areas of the Canadian criminal justice system (notably with respect to issues of imprisonment and policing), I have been astounded by what I have learned about the extradition process in Canada since I began to pay closer attention to the case of Dr. Hassan Diab as of the spring of 2011.
Viewed from the perspective of the Canadian Constitution and its Charter of Rights and Freedoms there appear to be numerous anomalies and injustices in the manner in which this case has been handled so far. Detailed descriptions and analysis of these problems are recounted on the website devoted to supporting and advocating on behalf of Dr. Hassan Diab. Relevant information can also be found in the ‘Chronology of Events’ concerning Dr. Hassan Diab (prepared by David Gordon Koch – a graduate student in journalism at Carleton University in 2010-2011 – and myself). The Chronology itemizes events concerning the Copernic bombing, subsequent French investigations (insofar as information is available publically), the Canadian response, and the ordeals endured by Dr. Hassan Diab and his partner Dr. Rania Tfaily (a tenured Professor in Sociology at Carleton University).
A Sample of the Apparent Human Rights and Legal Due Process Violations Endured by Dr. Hassan Diab
(a) ‘Unsourced’ and possibly torture-related evidence
The French authorities rely on unsourced and uncircumstanced intelligence in their case against Dr. Diab. No one knows – not even the French examining magistrate or the Canadian judge – the source(s) of the intelligence or whether it is reliable in the first place. Much, perhaps even most, of this unsourced and uncircumstanced evidence may have been generated from individuals who, at the time of their interrogations, were being subject to conditions of torture.
Under normal circumstances involving the administration of criminal justice, and adherence to principles of due process, in Canada as in many other countries, such problematic and fundamentally suspect sources of ‘evidence’ would not be admissible in legal proceedings.
It is an anomaly that, while Canada generally adheres to such a basic human right within its own borders, through the extradition process sought by the French authorities Canada has thus far failed to adequately protect this right on behalf of its own citizen Dr. Hassan Diab.
In the course of the extradition hearing the unsourced intelligence was withdrawn by the prosecution in favour of a reliance on the handwriting evidence. However it is of grave concern that the information could be re-introduced if matters proceed to a trial in France. It is also regrettable that, in delivering his decision, Justice Minister Rob Nicholson made no effort to dissuade the French authorities from using unsourced intelligence in any future proceedings against Hassan Diab (see [1]).
(b) Limited disclosure of evidence by the prosection
Under Canadian criminal law it is an important right for the defence that there is full disclosure and legal consideration of evidence, including exculpatory evidence, on the part of the prosecution.
By contrast, in the case of Dr. Hassan Diab, evidence that points away from his involvement in the Copernic bombing was ruled inadmissible in Dr. Diab’s extradition proceedings.
For example, palm print and fingerprint evidence taken from Dr. Hassan Diab did not match such evidence taken by the French authorities in connection with the scene of the bombing. These extremely important facts pointing away from potential culpability on the part of Dr. Hassan Diab were not given the crucial consideration that they deserve by either the French or Canadian legal authorities.
(c) Extremely problematic handwriting evidence
Extremely faulty and problematic features of investigations on the part of French authorities also appear not to have been given the consideration they arguably deserve by the Canadian legal system.
A notable instance here involves the alleged handwriting evidence initially produced by the French authorities in building their case against Dr. Hassan Diab.
The background is that one of the terrorists involved in the bombing (allegedly Hassan Diab) checked into a nearby hotel prior to the bombing. As a part of the check-in process the alleged terrorist wrote five words in block print on a hotel registration form.
The French authorities and their handwriting experts compared the handwriting on the hotel form to that on documents associated with Hassan Diab as of the late 1980s and early 1990s (notably, forms related to Syracuse University).
Evidence presented by the defence for Dr. Hassan Diab showed that the late 1980s documents where the handwriting had been attributed to Hassan Diab had not actually been filled out by him, but by another individual.
In face of this fundamental flaw the testimony of the two French handwriting experts had to be withdrawn from the case in Canada by the French authorities.
It is difficult to understand how such a fundamental flaw on the part of investigators and the prosecution should not have been sufficient for the Canadian legal authorities to terminate the proceedings. Instead the French authorities were permitted to introduce yet another handwriting expert (by Anne Bisotti).
(d) Late-breaking revelation that France may want Diab only for questioning
Throughout the extradition hearing (which ended on 6 June 2011) all parties concerned in Canada were under the impression that the French authorities wanted Hassan Diab extradited to France for the purpose of being put on trial. It was therefore a shock to discover in late 2011 when French authorities revealed that Dr. Diab had not been formally charged and was wanted primarily for questioning and further investigation.
In his submissions to the Minister for Justice Rob Nicholson, defence lawyer Donald Bayne emphasized that no decision had yet been taken by French authorities whether or not to submit Hassan Diab to trial. He expressed concern that Diab could be incarcerated in France and left to languish without trial (see [2]). However in rendering his decision on April 4 2012 Justice Minister said that he was required to interpret both the extradition Treaty and Act in a “flexible manner.” He continued: “To that end, I must not subject the judicial process in France to overly technical evaluations against the rules that govern the legal process in Canada.” (see [3]).
Of note here are several recent cases where an extradition request by France have been refused partly because the requests were for further investigation and questioning. These include Fletcher v. France (2008) involving a request to Gibraltar (see [4]) and the case of Ian Bailey in Ireland where in March 2012 five Supreme Court judges unanimously agreed that “extradition should be refused on the ground that there was no actual intention by the French authorities to try Mr Bailey at this stage…” (see [5]).
Also of note is that Hassan Diab has repeatedly affirmed that, here in Canada, “I am willing to answer any questions the French authorities may ask” (Cobb, Ottawa Citizen, April 13, 2012).
Humanitarian Concerns about the
Treatment of Dr. Hassan Diab
Overall, the litany of anomalies and human rights and due process violations is far more lengthy and complex than has been presented thus far. Further information can be found on the website concerning Dr. Hassan Diab’s case.
Interconnected, and of similarly grave concern, are the arguably inhumane conditions to which Dr. Hassan Diab has been subject. In addition to several periods of incarceration (in 2008-09, and in 2011) at the Ottawa-Carleton Detention Centre, Dr. Diab has been subject to extremely onerous bail conditions for over three years.
Although over a year elapsed between Dr. Diab being informed that he was a suspect concerning a terrorist act in France nearly thirty years earlier and his arrest in November 2008, Dr. Diab made no attempt to flee Canada. Despite this, after his arrest Dr. Diab was denied bail and was detained in custody.
On April 1st 2009 Dr. Hassan Diab was released from the Ottawa Carleton Detention Centre. His five sureties at the time totalled $290,000, and he could only leave his home between 7am and 9pm when accompanied by one of the individuals who had offered a surety on his behalf (see [6]).
While the above restrictions are burdensome in themselves Dr. Diab has also been subject to additional conditions that have resulted in him being in a situation of “virtual house arrest” (with the quoted term used by Justice Robert Maranger who imposed the conditions). Most notably, he has been subject to wearing an electronic bracelet on his ankle, complete with a GPS (Global Positioning System). While the use of electronic monitoring on suspects released into the community is not unusual in Canada, in the case of Dr. Diab what seems to be extraordinary is the Dr. Diab’s bail conditions include that he pay the substantial fee of approximately $2,000 a month to the company (JemTech) that supplies the electronic monitoring bracelet. Repeated requests by the defence to have responsibility for these fees removed (especially in the context of delays resulting from actions on the part of the prosecution) have not yielded any relief.
It is difficult to understand how any individual in a somewhat ‘normal’ situation (e.g. with a regular income from steady employment) might cope with an average monthly bill of approximately $2,000 for over three years for self-surveillance, and with the prospect of such bills continuing indefinitely, especially when the individual concerned had no interest in fleeing in the first place.
For me personally, it is impossible to understand how the Canadian legal system has allowed this situation to continue in a context where Dr. Hassan Diab has been unemployed since July of 2009. (At that time Dr. Diab’s contract was terminated by Carleton University – an action that has been criticized by the Canadian Association of University Teachers, as well as other organizations).
By what logic is an unemployed person supposed to be able to pay such fees?
For Dr. Hassan Diab it has only been possible because of the phenomenal financial support of his partner Dr. Rania Tfaily, as well as from a wide network of individuals and organizations that have confidence in his innocence, and that have been deeply distressed by the treatment to which he has been subject.
It is arguably not only Dr. Hassan Diab and his spouse, but his wide network of supporters, that have been unjustifiably penalized by this bizarre and Kafkaesque process.
This new millenium version of the historical ‘debtors’ prison’ – with its many implications for issues of freedom based on access to financial resources – is but one of many human rights issues arising from the case of Dr. Hassan Diab that require further investigation, analysis and activism.
What Those Concerned about This Case
Can Consider Doing
A multitude of legal, ethical, and socio-political issues arise concerning the case of Dr. Hassan Diab. Fundamental among these is the law of extradition in Canada (see the ‘Justice for Hassan Diab’ website for more information), and the extent to which it does, and does not, comply with Canada’s Constitution and especially the Charter of Rights and Freedoms. Also fundamental is the extent to which Canadian legislation concerning extradition does and does not comply with international conventions concerning human rights, as well as progressive norms concerning due process and the rule of law.
One can only imagine however, that for Dr. Hassan Diab personally, what is most immediately at issue is the possibility of removing the onerous restrictions and pressures that he has to contend with. Removal of the bail conditions, including the financial and personal burdens imposed by the electronic monitoring and GPS surveillance, and also the demands of his curfew and his dependence on his sureties, are surely priorities.
While the extradition process in Canada is a legal one, it also has important political dimensions. Rob Nicholson, the Canadian Minister for Justice, could have refused France’s request for the extradition of Hassan Diab, for example on the grounds that “the surrender would be unjust or oppressive having regard to all the relevant circumstances.” However diplomacy was given priority. Among the arguably most alarming statements in the Minister’s rationale for his decision to support extradition was as follows (see [7]) (emphasis added):
“The guilt or innocence of the person sought is not a consideration in the extradition context.”
Yet another anomaly is that France refuses to submit its own citizens for extradition at the request of foreign governments – Canada included. It is hard to understand diplomatic discourses of ‘partnership’ in face of this disconnect. How can Canada accede to requests by the French authorities in the knowledge that any request by Canada to France for extradition of a French citizen to Canada would not receive reciprocal cooperation from France?
Supporters of Dr. Hassan Diab are already numerous. However it is hoped that, as people learn more about the details of this case, they will consider taking action. There are several ways in which this can be done:
1. STAY INFORMED This can be done by visiting the website http://www.justiceforhassandiab.org. Supporters are also urged to share information with human rights and social justice organizations that you have contact with.
2. SIGN THE PETITION You can add your signature to the petition at http://stopextradition.diabpetition.org expressing concern about the case and advocating reform of Canada’s extradition laws that currently facilitate “persecution by proxy.”
3. DONATE The legal costs are staggering, including the ongoing monthly cost of approximately $2,000 for surveillance of Hassan Diab by GPS/electronic monitoring.
A simple way to donate is to go to the web pagehttp://www.justiceforhassandiab.org/donate. Several options are available including a one-time payment using a credit card or paypal account.
There is also an option to donate on a monthly basis for 6 months. I, and several other colleagues at Carleton University, are currently spearheading a campaign to have an additional 200 supporters each commit to $20 per month for 6 months. Please consider donating.
4. WRITE to the Canadian Minister for Justice expressing concern:
The Hon. Rob Nicholson, Minister for Justice
House of Commons
Ottawa, Ontario, Canada K1A 0A6
E-mail: rob.nicholson@parl.gc.ca
Copies of correspondence can also be sent to Paul Dewar of the New Democratic Party (who is Hassan Diab’s member of Parliament, and is also opposition critic for Foreign Affairs)
Mr. Paul Dewar
House of Commons
Ottawa, Ontario, Canada K1A 0A6
E-mail: paul.dewar@parl.gc.ca
Please also copy correspondence to the Hassan Diab support committee at diabsupport@gmail.com
Thank you for your attention to this matter.
Yours sincerely,
Maeve McMahon
International representative
European Group for the Study of Deviance and Social Control
NOTES
1. Critics of France’s propensity for using unsourced intelligence possibly derived from torture include Human Rights Watch (e.g. the report ‘No Questions Asked’, 2010).
2. Bayne, Donald B., ‘In the Matter of a Request by the Republic of France for the Extradition of Hassan Naim Diab: Supplementary Submissions to the Minister of Justice (s. 43 Extradition Act)’, 26 January 2012, p. 6.
3. Rob Nicholson, Letter in response to submissions by Donald B. Bayne, 4 April 2012, p. 7.
4. This is discussed by Don Bayne on page 7 of his submission on 26 January 2012.
5. Mary Carolan “Five Judges Grant Bailey’s Appeal Against Extradition, The Irish Times, 2 March 2012.
6. As of mid-June 2011 Diab’s conditions were slightly modified allowing him an extra hour in the evening. He was also given permission to travel to Toronto for periods of up to 48 hours in order to be able to consult with the law firm conducting his appeal.
Maeve McMahon is an Associate Professor of Law and Criminology at Carleton University, Ottawa, Canada.
This was one of several documents originally prepared in the summer/fall of 2011 and provided to members of The European Group for the Study of Deviance and Social Control seeking their support for Dr. Hassan Diab and his case. The European Group (which has over 700 members) sent a petition to Justice Minister Rob Nicholson asking that he exercise his power to decline France’s request for Diab’s extradition. The European Group also urged that steps be taken to remedy and reform aspects of Canada’s Extradition Law that are not currently in conformity with international norms concerning respect for due process and principles of fundamental justice. The petition was sent to the Minister on September 28, 2011. As of August 2012, no response has been received.