Hassan Diab’s extradition to France, and his recent return to Canada, raises important questions on Canada’s Extradition Act, writes Scott Newark.

By Scott Newark, Feb. 13, 2018

The recent return of suspected terrorist Hassan Diab from France without prosecution for the terrorist crimes for which he had been extradited from Canada in 2014 has legitimately raised several issues that need to be addressed. This is not only because of the circumstances of the case, but also due to the changing nature of international crime and terrorism – one that requires targeted international cooperation and effective and balanced legal processes to address real and evolving problems in an appropriate way.

Diab, a Lebanese-Canadian citizen, was first identified in 2007 by French media as a suspect in a murderous terrorist attack on a Paris synagogue in 1980 that killed four persons and injured scores of others. The attack was alleged to have been carried out by the Popular Front for the Liberation of Palestine (PFLP) which Canada has since listed as a terrorist entity.

The case had been dormant since the attack until 1999 when French intelligence received information from unidentified sources that a person named Hassan Diab was the leader of the attack. The 2007 media story was apparently based on that and a German report that they had discovered a PFLP membership list that referenced Diab as having led the Paris attack. French authorities thereafter revealed that they had other evidence including photographs and suspect sketches from the scene, handwriting believed to be from the leader of the attack, and links to his passport that was allegedly used by the leader of the attack.

A Shia Muslim born in Lebanon, Diab obtained a BA from Beirut University in 1982. He emigrated to the US in 1987 obtaining an MA and PhD in Sociology from Syracuse University in 1992 and 1995, respectively. He also undertook teaching positions in Lebanon and the UAE. He moved to Ottawa in 2006 to work as a contract sociology professor at Ottawa University and Carleton University and obtained his Canadian citizenship the same year. During this time, Diab was able to travel and enter the US and Canada and achieve Canadian citizenship without any security concerns being raised.

Following the French media story in 2007, Diab virulently denied the claims and, presciently, offered to be interviewed by French officials if, and only if, that happened in Canada. The French declined and in November 2008, Diab was arrested and detained by the RCMP pursuant to a formal extradition request by France on multiple murder and attempted murder charges.

From the outset, Diab’s lawyers questioned the sufficiency and reliability of the French evidence against Diab, especially in relation to the subjective handwriting analysis that linked him to the attack. Under Canada’s Extradition Act, however, the Canadian prosecutor was not required to present the actual evidence to the Court and instead produced a summary of what they were advised would be presented at trial in France. Additionally, the evidentiary standard to approve extradition was not proof beyond a reasonable doubt, as required at trial, but instead the much lower standard for committal to trial which is based on whether a properly instructed jury could reasonably return a verdict of guilty.

From the outset, Diab’s lawyers questioned the sufficiency and reliability of the French evidence against Diab.

In June 2011, Justice Robert Maranger approved Diab's extradition but noted the low legal standard that required his extradition order and specifically commented that the evidence was "weak, convoluted and confusing" and would likely be too weak to convict Diab if he were tried in Canada.

The next step required the justice minister's approval, which came in April 2012. Diab appealed both decisions. The Ontario Court of Appeal issued a detailed ruling in 2014 upholding the extradition orders while confirming the evidentiary and systemic concerns. The Supreme Court of Canada refused to hear a further appeal, and in November 2014, Diab was extradited to France

Diab was held in custody while French officials continued their investigation. During this time he was ordered released on bail eight separate times but all of these orders were reversed on appeal as he was deemed to be a ‘flight risk.’ Finally, on January 15, 2018, a French judge dismissed the case noting that the supposed intelligence about Diab’s PFLP role was unsourced, there was no DNA or photo link evidence, and the supposed handwriting matches with Diab were completely unreliable.

The judge also cited further investigative evidence that confirmed Diab’s alibi that he was in school in Beirut at the time of the attacks and that his passport had been stolen as he claimed. As a result, Diab was allowed to leave France and he has now returned to Canada. Following his return, Diab, his supporters and his Canadian lawyers that argued against his extradition, have called for a public inquiry into the case to ensure that the extradition process is modernized to prevent a re-occurrence of this kind of case.

At the core of the Diab case was the long standing Canadian legal process that was used under our Extradition Act and permitted his transfer to France and their inquisitorial legal system – one that is markedly different than the Canadian criminal justice system. Contrary to the usual course of events following extradition from Canada, Diab was ‘investigated’ rather than prosecuted.

Of particular interest is that the hearing judge determined the only evidence that met the extradition order’s evidentiary standard was the handwriting analysis. The Court concluded that all of the other evidence identified as available did not directly link Diab to the attack. As the Court of Appeal noted:

 “The evidence that tips the scale in favour of committal,” the extradition judge continued, “is the handwriting comparison evidence. Once found to be reliable for purposes of extradition i.e. not manifestly unreliable evidence, the question became whether a jury considering the handwriting evidence together with the other evidence in the [record of the case], could find as a fact that Mr. Diab was Alexander Panadriyu and thus one of the persons responsible for the bombing. The short answer is yes. Consequently, when all is said and done, a committal order is warranted”: [78]

From this, two important evidentiary issues were clear. First, was the handwriting analysis reliable? And, second, could Diab’s claim that he was in Lebanon at the time and that his passport had been stolen be refuted or confirmed? Unfortunately, pursuant to the Extradition Act and Court rulings related to it, Canadian Courts were compelled to leave those issues to the French criminal justice process. After three years of ‘investigation,’ the French process concluded that the subjective handwriting analysis was not reliable, Diab’s passport was stolen, and Diab’s claim that he was at school in Lebanon at the time of the attack was confirmed.

These evidentiary issues were known since at least 2007 yet it took French authorities over ten years to resolve them? Having a Canadian extradition process that permits this is a legitimate concern that should be reviewed.

These evidentiary issues were known since at least 2007 yet it took French authorities over ten years to resolve them?

In addition to the evidentiary issues, at the extradition hearing and on appeal Diab’s lawyers argues that the French criminal law process did not meet the procedural requirements of s. 3 of the Extradition Act which states:

 3 (1) A person may be extradited from Canada in accordance with this Act and a relevant extradition agreement on the request of an extradition partner for the purpose of prosecuting the person or imposing a sentence on — or enforcing a sentence imposed on the person…

Diab had not been charged with an offence at the time the extradition request was made. As the Court of Appeal explained:

[161] France has a civil law system. In criminal matters a juge d’instruction is assigned to investigate crimes and may place a specific individual under judicial investigation (“mis en examen”). Before an individual can be mis en examen, that individual must have made a first appearance before the juge d’instruction and have been allowed to make a statement. Once an individual is mis en examen, the individual officially becomes the subject of a criminal investigation.

[162] When the investigation is complete, the juge d’instruction notifies the parties and decides whether the evidence justifies referring the matter to a trial court or declaring that there is no case to answer.

[163] With respect to this case, the French government has confirmed that the appellant has not yet been mis en examen. Once he appears before the juge d’instruction, the juge d’instruction will decide whether he will be mis en examen and, assuming he is mis en examen, only then can the judge complete the investigation and decide whether the appellant will stand trial. As explained by the appellant, it is clear, therefore, that no decision has been made to have the appellant tried in France.

Both the original hearing Court and the Court of Appeal were satisfied, however, that the different French process did not constitute a barrier to Diab’s extradition. The Court of Appeal actually summarized the rationale of its decision by noting:

[175] What we conclude from the cases and a contextual reading of the statutory provisions is that an extradition request must be grounded in the anticipation that there will be a foreign trial. In other words, a process or prosecution has been initiated against the person sought that will, if not discontinued, lead to a trial. The person sought must be more than a mere suspect. A trial of that person, however, need not be inevitable.

 [176] The record in this case clearly demonstrates that the appellant, if extradited, will not simply “languish in prison.”

For most Canadians, being locked up for over three years, despite eight separate release orders being made, while an investigation falls apart would constitute languishing in prison. That the current provisions of the Extradition Act accept this outcome is also an issue that clearly merits review.

Diab and his lawyer have called for a public inquiry not only into the facts of his case but also the existing extradition process to prevent a re-occurrence of what happened to him. This kind of review makes sense and should include consideration of several issues including:

  • Improving international cooperation to enhance investigative capabilities and subject questioning prior to a formal extradition request;
  • Permitting requirement of specified procedural action from requesting the nation where different systems are involved;
  • Permitting the Court/Minister to receive evidentiary exculpatory submissions from the accused on specific evidentiary issues and require requesting state to address them prior to extradition being ordered;
  • Clarifying the evidentiary standard for extradition (committal) including consideration of unreliability of evidence revealed by cross examination or evidence from the accused.

In today’s world of international crime and terrorism, investigative cooperation among countries is critical. Modernizing existing legal procedures to appropriately deal with these relatively new activities is also essential. Accordingly, however awkward it may be, it’s time to learn from this experience and move forward.

Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations to the Washington DC-based Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.