On April 4, 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: ‘We expected this decision, but not this way’, Ottawa Citizen, April 6, 2012