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<H1 class=title>Taking Liberties: Revelations in Hassan Diab case highlight
major faultlines in extradition process </H1>
<DIV class=story-author>By <A href="http://rabble.ca/taxonomy/term/1807">Matthew
Behrens</A> </DIV>
<DIV class=story-author>(rabble.ca)</DIV><SPAN class=date-display-single>April
23, 2012</SPAN>
<DIV class=content>
<DIV class="story-content story-content-columnists">
<DIV class=body>
<P>The multi-year extradition saga of Ottawa university professor Hassan Diab --
sought by the French for his alleged role in a 1980 Paris bombing that claimed
four lives -- has taken yet another bizarre turn with the news that Diab has not
even been formally charged. He is merely sought for questioning, with no
guarantee that a trial would ensue.</P>
<P>Despite this astounding discovery -- no doubt discomfiting to the Ontario
judge who presided over Diab's two-year extradition hearing -- Justice Minister
Rob Nicholson has signed a surrender order committing Diab to years of French
detention without charge while the 32-year investigation into the crime
continues.</P>
<P>It's a decision that Diab's lawyer, Don Bayne, says is unprecedented in
Canadian history. But then again, nothing about the Diab case passes the
judicial smell test. It would be an understatement at best to declare that Diab,
who adamantly denies any involvement and condemns violence and anti-Semitism, is
a victim of mistaken identity. Indeed, Diab's finger and palm prints,
handwriting, and physical description do not match those of the suspect, yet the
case has ground on largely due to an arcane process that sacrifices the Charter
rights of an individual to the politics of foreign relations.</P>
<P>Under Canada's extradition law, the duty of a Canadian court and the Minister
of Justice is, first and foremost, to the government seeking an individual. That
individual no longer enjoys the rights that are supposed to be accorded everyone
else facing the deprivation of their liberty. Canadian standards of evidence are
thrown out the window, and the case against the individual is presumed to be
reliable, regardless of how many inaccuracies, errors, omissions and
contradictions are contained within it. One cannot present evidence to show
one's innocence, and the requesting state need not present any evidence of that
innocence.</P>
<P>The deck is clearly stacked yet, as the Supreme Court of Canada has found,
extradition is, in the end, not a legal issue, but a political decision: is the
government of Canada willing to risk its relations with one of its extradition
partners, or will it sacrifice one of its citizens (or a refugee or permanent
resident) in the name of maintaining happy diplomacy?</P>
<P>In all extradition cases, the argument goes, an individual sought by another
country can "sort out the mess" upon their arrival in a foreign jail. It is a
process fraught with danger: a foreign government can carry out a persecution by
proxy using the extradition law, claiming it has a case against a political pain
in the neck living in Canada, and presenting what amounts to a "prima facie"
case without needing to vouch for the case's accuracy.</P>
<P>Extradition cases normally involve individuals who have been charged and
would face trial upon being surrendered to a foreign country. And so Diab's new
conundrum -- being sought on mere suspicion -- is, as Bayne suggests, a "new
low" for the Harper government.</P>
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<P>Diab is dumbstruck at the thought that his whole life should be upended --
even more so than it already has -- because the French have some questions for
him.</P>
<P>"I have been clear -- since these unfounded allegations against me surfaced
in 2007 -- that I am willing to answer any questions that the French officials
may have," Diab told a packed Parliament Hill press conference April 13. "I have
previously accepted the RCMP offer to take a polygraph test. I am anxious to
clear my name, and I am willing to do whatever it takes to prove my
innocence."</P>
<P>While the RCMP withdrew their polygraph offer and the French have been silent
on the idea of questioning Diab here in Canada, the professor and his partner,
Rania Tfaily, are saddled with $2,000 a month in GPS monitoring costs that keep
him out of the physical prison where he spent many long months following his
2008 arrest.</P>
<P>While the Diab case has been perplexing from the start, it also shines a
light on differing judicial interpretations of the standards required for an
extradition case. Bayne notes that if Diab had been before the B.C. courts
(which employ a slightly higher standard), he likely would be a free man today,
rather than facing surrender to France on a case that the Ontario extradition
judge found to be "weak," "suspect," and "confusing," concluding "the case
presented by the Republic of France against Mr. Diab is a weak case; the
prospects of conviction in the context of a fair trial, seem unlikely." The
Ontario judge nonetheless concluded his hands were tied and he had no choice but
to commit Diab for extradition.</P>
<P>Apart from the fact that the French system Diab would face is hardly fair --
indeed, it is an inquisitorial, Napoleonic-era creation that even French
President Sarkozy has said should be abolished given that it eliminates the
presumption of innocence -- the likelihood of even getting to trial is far from
certain.<BR><BR>Diab's legal odyssey also reflects the conflict of interest that
taints the "surrender stage" of the extradition process. Nicholson, the
individual who originally agreed to set the process in motion four years ago, is
now asked to consider arguments about why he should change his mind. Doing so
would be a blunt admission that something was wrong with his prior judgment,
with the French case, and with the system itself, an exercise in humility not
likely to be found on a Tory's resumé.</P>
<P>And so, in considering whether to surrender Diab, Nicholson was presented
with a mountain of expert reports, court decisions and human rights documents
pointing out that sending Diab to France would be inconsistent with the
Extradition Act's grounds for refusal: that "the surrender would be unjust or
oppressive" or a finding that the case is motivated by political or racial
persecution. Nicholson was made aware, for example, of two significant cases
where the French sought an individual for questioning, but the courts of
Gibraltar and Ireland both turned France down after concluding the extraditions
were sought for impermissible purposes.</P>
<P>Nicholson also had before him legal opinions stating that in cases like Dr.
Diab's, where unsourced, often secret intelligence is introduced as evidence,
the rights to a fair trial and fundamental justice are hijacked. One report from
the respected British human rights group <A href="http://www.justice.org.uk/"
target=_blank>Justice</A> notes such intelligence is "unreliable, unfair,
undemocratic, unnecessary and damaging," yet Nicholson simply chose to ignore
such findings in favour of his own opinions.<BR><BR>Nicholson also says Diab can
rest easy because, were he to be facing a French trial, he "may also seek to
call the sources" of the anonymous, secret intelligence, yet it is unclear how
this would be possible, given that the French judge himself does not know the
source, and there is also a possibility that it may come from torture in Syria
(French intelligence has a history of collaboration with Syrian torturers).
While acknowledging "our courts have found that the admission of such evidence
would, in Canada's adversarial system of justice, render a trial unfair,"
Nicholson nonetheless concludes he is obliged to accept that the French system
"comports with our notions of fairness and due process."</P>
<P>Canada's Justice Minister claims that he has to interpret the Extradition Act
in a flexible manner, and "I must not subject the judicial process in France to
overly technical evaluations against the rules that govern the legal process in
Canada." Indeed, he must not do anything to question "the good faith, integrity
and honour of Canada's trusted extradition partner," but calling this
dysfunctional relationship a partnership is a misnomer, given France does not
allow extradition of its own citizens.</P>
<P>An appeal of both the original Ontario court extradition committal as well as
a judicial review of the Justice Minister's surrender decision is expected later
this year or early in 2013.</P>
<P>In the meantime, Diab and his partner live with the combined stresses of a
house arrest they must incur massive debts to pay for and the psychological
torture of this indefinite, Kafkaesque process. Diab has gathered considerable
cross-Canada support, however, and it's part of what keeps him going through the
years of uncertainty that lie ahead.</P>
<P>"I remain hopeful that the Canadian legal system will give me a fair chance,
will look at the facts, and realize that it would be a grave injustice to
extradite me for a crime that -- even the evidence shows -- I did not
commit."</P>
<P><EM>Matthew Behrens is a freelance writer and social justice advocate who
co-ordinates the Homes not Bombs non-violent direct action network. He has
worked closely with the targets of Canadian and U.S. 'national security'
profiling for many years.</EM></P>
<P><EM><BR></EM></P>
<P><EM>For more information on what YOU can do to help out,
visit </EM><SPAN style="FONT-STYLE: italic"
class=Apple-style-span>www.justicefor<B>hassandiab</B>.org</SPAN></P></DIV></DIV></DIV>
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