In a new Open Letter calling for an end to fifteen years of manifest injustice in the case of Canadian citizen Hassan Diab, over 130 members of the Canadian legal community – including law professors, retired judges, practicing and retired lawyers, and legal researchers from across the country – have called on Prime Minister Trudeau to deny the French government’s second request that Dr. Diab be extradited to France.
The letter reminds the Prime Minister of his comments in 2018, after Hassan Diab returned to Canada following his earlier extradition. Dr. Diab had been held in a maximum-security prison in Paris for more than three years, almost entirely in solitary confinement and he was never officially charged or brought to trial. He was released and returned to Canada after the French investigative judge found solid evidence that he was in fact in Lebanon when the crime he was extradited for was committed. Prime Minister Trudeau stated that what had happened to him “never should have happened” and that steps would be taken to “make sure that it never happens again.”
In April 2023, Dr Diab was declared guilty by a French tribunal after a short and unjust trial. There is great political pressure in France for someone, apparently anyone, to be convicted for this terrible crime; it appears a conviction was inevitable, despite the lack of an actual case. In the view of the undersigned, this cannot stand.
Read the full media release here. The full letter is below.
June 8, 2023
The Right Honourable Justin Trudeau
Prime Minister of Canada
80 Wellington Street
Ottawa, ON K1A 0A2
Dear Prime Minister:
As you know, for years many Canadians have been alarmed by the ongoing nightmarish ordeal of Dr. Hassan Diab, who was unjustly accused and has now been wrongfully convicted for a terrorist bombing that took place in Paris in 1980. In 2014, Dr. Diab was extradited to France on the basis of handwriting evidence that even the Ontario Superior Court Justice who committed him found to be “convoluted, very confusing, [and] with conclusions that are suspect.”
Dr. Diab was then subjected to solitary confinement for over three years—before being released following nearly three years of extensive investigation by two of France’s most experienced juges d’instruction (Jean-Marc Herbaut and Richard Foltzer) who concluded unequivocally that there existed no evidence to support sending Dr. Diab to trial (“Attendu qu’il n’existe dès lors pas de charges suffisantes contre Hassan Naim DIAB […] Ordonnons en conséquence la mise en liberté immédiate de Hassan Naim DIAB” (Jean-Marc HERBAUT et Richard FOLTZER: Ordonnance de non-lieu, p. 72 (le 12 janvier 2018)).
Five years have gone by and Dr. Diab’s situation has become even more shocking. Incredibly, in April of this year the French Special Assize Court (Cour d’assises spéciale) proceeded with a prosecution of Dr. Diab, in absentia, and he was convicted and sentenced to life imprisonment. An arrest warrant was also issued (“CONDAMNE, à la majorité, Hassan DIAB à la peine de la réclusion criminelle à la perpétuité; DÉCERNE mandat d’arrêt à l’encontre de Hassan DIAB.” (Cour d’assises de Paris, Arrêt criminel, No 21/0073, du 21 avril 2023)). This was despite clear previous acknowledgment by French prosecutors and courts that the main evidence said to prove his guilt—a handwriting analysis—was methodologically flawed and amounted to worthless evidence. Yet this same evidence was admitted at the trial, along with unsourced “intelligence” the origin of which could not be traced by the prosecution.
Moreover, according to French media reports and personal communications from supporters of Dr. Diab who attended the trial, the court ignored all exonerating evidence, including evidence that he was in Lebanon when the bomber was in Paris for at least 12 consecutive days from Sept 22 to Oct. 3, 1980; and dismissed the findings of the juges d’instruction that there was no valid case for conviction. Journalists who were not witnesses to any of the relevant events were called to give their “expert” opinions of guilt at the trial. Incredibly, there is no written transcript or recording of the court proceedings.
To be clear, the only new evidence adduced at trial was evidence strongly showing innocence—forensic fingerprint evidence on both the hotel card and police statement of the bomber that excluded Dr Diab, and evidence that he was in Lebanon when the bomber was in Paris. Observers at the trial noted that the Presiding Judge was uninterested in the defence evidence.
The verdict was decided by a majority of the five judges, meaning that one or maybe two judges opposed the ‘guilty’ verdict. There is no jury system available in the French anti-terrorist court and, following an in absentia verdict, there is no right of appeal. [Code de procédure pénale, Article 698-6 (Modifié par LOI no. 2021-1729 du 22 décembre 2021, art.15(V)]
Unsurprisingly, and as noted, a conviction was entered, and an arrest warrant was issued. On April 27, 2023, Senator Marc Gold, the Representative of the Government in the Senate, stated publicly that France has requested Dr. Diab’s extradition. There is great political pressure in France for someone, apparently anyone, to be convicted for this terrible crime; it appears a conviction was inevitable, despite the lack of an actual case. In the view of the undersigned, this cannot stand.
Prime Minister, in its decision regarding Dr. Diab’s initial extradition (France v. Diab, 2014 ONCA 374), the Ontario Court of Appeal ruled that extradition would be Charter-compliant for two important reasons: France was ready for trial, so Dr. Diab would not “languish in prison”; and there was no “real risk” that torture-derived evidence (via intelligence sources) would be used against him. Both of those have now come to pass. Dr. Diab did, indeed, languish in prison, before the case against him collapsed; and the intelligence evidence adduced at trial was admitted despite the prosecution’s acknowledgment that it was impossible to know its origin, raising the real concern, in fact the clear likelihood, that it was derived from torture.
We acknowledge that France is a longstanding treaty partner of Canada, but in this case, at nearly every turn, the French government’s actions have been in bad faith. The manifest unfairness of Dr. Diab’s trial raises the concern that France is in breach of its fair trial obligations under Article 14 of the International Covenant on Civil and Political Rights, to which Canada and France are both parties. It further raises the prospect that, were Canada to extradite Dr. Diab, it would similarly be in breach of the Covenant by extraditing an individual to face a manifestly unfair criminal justice process.
Prime Minister, when Dr. Diab returned from France in 2018, you said that what had happened to him “never should have happened,” and that efforts would be made to ensure it did not happen again. We respectfully ask your government to keep your promise. As Amnesty International stated in March 2023, “Justice does not…come by pursuing a man against whom both the Canadian and French justice systems have already found there to be a lack of credible evidence.”
Extradition is an important tool in combating transnational crime, but it should not and must not be used as an instrument of persecution and scapegoating. France’s request for Canada to extradite Dr. Diab must be denied.
Respectfully submitted,
Robert J. Currie, K.C.
Professor of Law, Schulich School of Law, Dalhousie University, Halifax, Nova Scotia
Alex Neve, O.C.
Barrister and Solicitor, Adjunct Professor of International Human Rights Law, Ottawa, Ontario
