In the year between the surfacing of terrorism allegations against former Carleton University professor Hassan Diab and the extradition request was sent, Peter Gose said he became convinced of his colleague’s innocence.
Gose, the Chair of the Department of Sociology and Anthropology, said he spent the year intervening against the “media circus” surrounding Diab and dealing with the fallout from the accusations. “It was preventing his ability to work for us,” he said.
Although the allegations surfaced earlier, French prosecutors formally requested Diab’s extradition in 2008 in connection to a 1980 synagogue bombing in Paris that killed four, injured at least 40 others and caused extensive damage.
“During that time I got to know him a lot better,” Gose said. “I talked with him a lot about the charges . . . and felt he could not have done what he’s alleged to have done.”
When he returned from a trip in November 2008 to find Diab being held in a detention centre, Gose said he agreed to to post bail to help him get out on bail.
While he wouldn’t call himself an expert on extradition law, Gose said the process, which has lasted over four years – unusual for an extradition case – has been eye opening to see “just how stacked the deck is.”
Extradition, when one country requests another country to hand over someone to be tried for a crime, is a contentious issue in Canadian law because it has to strike a balance between foreign treaties and protecting the rights of people living in Canada.
But striking the balance is something Canada isn’t doing particular well, according to Gary Botting, a British Columbia-based lawyer and one of Canada’s leading experts on extradition.
“It’s the least-fair area of Canadian law, the least-fair legislation in Canadian history,” Botting said. “It just unravels everything the common law stands for.”
In fact, the use of evidence in extradition hearings, the non-reciprocal nature of some of Canada’s extradition agreements and the narrow interpretation of the Extradition Act are just some of the things critics point to when highlighting the problems with the current system, especially when the number of citizens extradited has been increasing annualy.
Seventy-eight Canadians were extradited in 2008, the most recent year for which statistics are available, in comparison to 69 in 2005, 75 in 2006 and 77 in 2007.
The extradition process is flawed because of the prosecution’s control over evidence, Botting said. Unlike during a regular trial, the prosecution or requesting state are not required to submit all their evidence, just enough to show they have a case.
“If the prosecutors can cherry-pick the evidence they can simply leave out a lot of information,” Botting said, adding this forces the accused to accept what the prosecution says “at face value.”
Extradition hearings also rely almost exclusively on hearsay evidence, which is based on what someone has told a witness and rather than direct testimony, something not allowed in regular Canadian courts.
“What happens is somebody says something, somebody accuses somebody of something, the prosecutor writes it out, says this is the record of the case, certifies it… you’ve got triple hearsay and maybe it’s hearsay to begin with from the person who initially said, ‘OK, this is what I know,’ ” Botting said.
While John Norris, a lawyer with Simcoe Chambers in Toronto, said he agrees the “minimal” showing of evidence by the requesting state is a problem, he said he doesn’t see a way around the use of hearsay evidence.
“The extradition judge is not, barring really extraordinary circumstances, allowed to pick and choose in the evidence and say ,‘Well, I believe this witness, but I don’t believe that one.’ That’s for the trial.”
Still in light of Ontario Superior Court Justice Robert Maranger’s decision to include French handwriting evidence in the case against Diab despite calling it “very confusing,” “very problematic” and with “suspect conclusions,” Gose said he’d like to see an improvement to the rights held by the accused.
“I wouldn’t mind seeing a precedent set that strengthens a person’s rights for defense in these circumstances because it’s become very, very clear to us that in extradition hearings the deck is stacked so heavily against the person requested for extradition [that] it really seems to suspend their Charter rights and most normal civil rights.”
Carole Saindon, senior media relations advisor for the Department of Justice Canada, said the government could not comment on ongoing hearings. The French Embassy would not comment.
The system doesn’t sufficiently protect an individual’s rights, but Norris said people need to remember the extradition hearing isn’t a trial and therefore doesn’t allow for the same examination of evidence.
However, Matthew Behrens, the co-ordinator of the Campaign to Stop Secret Trials in Canada and member of the Diab support committee “Justice for Hassan Diab,” said he disagreed.
“That basically suspends everyone’s human rights here in Canada because it is placing our treaty obligations without extradition partners as paramount and Canada human rights in the process take the back burner,” he said.
One area Norris said is too restrictive is the “high threshold” for proving manifest unreliability, which is proving evidence is unsafe to rest a verdict on. The decision that the defense have to successfully prove manifest unreliability came from the 2006 Supreme Court appeal of Shane Tyrone Ferras, who argued unsuccessfully that he shouldn’t be extradited to the United States where he faced charges of securities fraud, conspiracy and money laundering.
While Ferras was unsuccessful, it did establish the principle of manifest unreliability. One of the current problems, Norris said, is that Ontario is very restrictive in its interpretation of the Ferras decision, whereas British Columbia’s interpretation is more broad and it will be up to the next case to make it to the Supreme Court to determine which interpretation is “right.”
Extreme differences in prosecution and punishments between countries with extradition agreements also draw fire from critics. Under Canadian extradition law, a citizen can only be extradited for an offense that is also considered an offense in Canada. However, what is punishable for 15 months in Canada could be punishable for up to five years elsewhere.
Currently, Botting said he is dealing with a case where a husband and father of two is facing extradition to the United States for growing marijuana, something he said would garner him up to 15 months in Canada but 15 years in the United States.
“Canada simply sits back and says we can’t do anything. . . . Frankly I’d rather be whipped than spend years in jail,” Botting said. “Sometimes you can get people who are facing years of their lives . . . and yet we’re complacent about that. I don’t think we should be.”
Sentencing is different country to country, Behrens said, adding the whole issue is about how much trust is placed in overseas courts. “These are things that in the interest of maintaining state-to-state relationships the Canadian government is willing to sacrifice the rights of the individuals who are being sought for extradition.”
However, Norris said those who commit crimes in different countries are assuming the risk of being charged in those countries. “It’s none of Canada’s business, barring things like the death penalty, how they decide to calibrate their defenses.”
In cases where the offense spans both Canada and another country, he said the minister of justice, who has the discretion to extradite or not extradite a citizen, should favour Canadian prosecution over extradition in most cases.
With respect to Diab’s case, Gose said his main concern is Diab won’t get a fair trial in France.
“We feel that he’s frankly being framed and the will to get a conviction is so strong for political reasons that they don’t care,” he said. “We have deep worries about anti-terrorism laws, relaxed evidentiary standards . . . we think that once he’s extradited it’s a forgone conclusion [that] he’ll be convicted despite all the evidence.”
The non-reciprocal nature of some of Canada’s extradition treaties is also drawing criticism, especially in Diab’s case since he is a Canadian who would be extradited to France, whereas the French won’t extradite French nationals to Canada.
While Canada will extradite to France, Botting said countries, like France, with a Napoleonic system have the same double standard and won’t extradite back.
“France would never give up any of its citizens to face charges like this in Canada, they would prosecute back in France. . . . Yet they expect Canada to give up [Diab].”
However, Norris said that while it isn’t specifically written into a treaty, the minister of justice has the same authority to refuse to extradite a Canadian to France. Reworking the Extradition Act to incorporate the minister’s discretion would be counter-intuitive, he said.
“I think if anybody opened up that can of worms again and started fiddling with the act they would make it easier to extradite people because . . . in the European Union it’s essentially a matter of signing a warrant and that’s it,” Norris said. “We have significantly greater protections here.”
Greater protections or no, the fight against extradition doesn’t end even if the request is denied, Botting said. “It’s the most ridiculous set of legislation imaginable because the individual really can’t win.”
Technically, the requesting state can continue to try and extradite someone until “somebody calls foul” and says its abuse of process. “Once it is finally determined by a Court of Appeal that there has been injustice it would be foolhardy for the Crown to continue . . . but technically they can,” he said. “Extradition is never over.”
Behrens agreed, calling it a “slippery slope.”
“Even if you’re cleared that’s one day of media, but the 10 years previous . . . that’s what will come up if you Google the name,” he said.
It’s not a process many Canadians know or care about, Gose said, his own reaction when he heard about the extradition request for Diab a testament to this.
“My immediate reaction was, ‘Wow. It’s happening where I work now,’ ” he said. “Up until then it had been . . . something that happened to other people in other places.”
Behrens said his own experience speaking with students about extradition and security certificates is that once they learn more about the issue they care.
“The idea that Canadians don’t give a damn . . . is too easy,” he said. “My experience is if you talk about the issue people are just amazed [that] these kinds of things are taking place in a country they have been taught in school is a democracy.”
With Diab’s own extradition hearing wrapping up, an appeal is expected regardless of the verdict.“I think no matter what happens it’s very likely [Diab] is going to appeal to the Ontario Court of Appeals and very possibly the Supreme Court,” Gose said.
If his case does make it to the Supreme Court, it would have the potential to set a new precedent in the interpretation of Canadian extradition law.
“The Ontario jurisdiction has settled, the B.C. jurisdiction has settled and the only way somebody’s going to break the tie is for the Supreme Court to pick the next case that goes up there and decide which interpretation was the right one,” Norris said. “There’s just no way to predict when that will be.”
