June 13, 2023

While Bill C-20 is a crucial measure to ensure greater accountability of the Canada Border Services Agency (CBSA) and the Royal Canadian Mounted Police (RCMP), the undersigned organizations are deeply troubled by the federal government’s lack of consultation or engagement with key civil society stakeholders in the development of this important piece of legislation both before this bill was tabled, and as it has moved through the legislature.

Bill C-20: An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments is an overdue bill that attempts to respond to the longstanding call to create a dedicated independent review and complaints process for the activities of the CBSA and make changes to the RCMP review process – amalgamating both under a Public Complaints and Review Commission (PCRC).

The signatories of this statement are established and well-regarded groups. They are led by and represent individuals and communities most impacted by the CBSA and the RCMP, including Indigenous, Black and other racialized people. We have decades of expertise in the areas of immigration and refugee law, criminal law, human rights, international law, civil liberties, and national security, to name a few.

The collective expertise of our groups can help the federal government fulfill the mandate of this Bill, expressed by the Minister of Public Safety in November 2022, to strengthen independent accountability and combat systemic racism and discrimination. Despite its stated objective of fostering accountability, the government is instead dodging it by failing to properly consult the communities we represent and include them in the democratic process of lawmaking.

There are many shortcomings to the proposed Bill C-20. Aspects that should be addressed include:

• the need to ensure the independence of the PCRC’s operations;
• the PCRC’s independent access to information;
• ensuring there is a mechanism for complaints on systemic issues;
• third-party complaints; and
• broadening the PCRC’s redress and recourse powers.

Attached to this statement is a summary of key recommendations from our briefs submitted to the Standing Committee on Public Safety and National Security, indicating how Bill C-20 can be revised in order to meet its intended purpose and mandate.

Whether our briefs and the issues we raise are considered is outside of our hands. Though we are hopeful, it is clear from the sheer lack of engagement on this issue that the government risks creating the PCRC as a shell of accountability that replicates or even exacerbates existing problems with the CBSA and RCMP.

We urge the Standing Committee to consider the recommendations described in the various submissions our groups have made and to integrate the amendments we propose. We welcome the opportunity to speak to members of the Standing Committee and answer any questions.

Signed by:

Amnesty International Canada (english-speaking)
Amnistie internationale Canada (francophone)
British Columbia Civil Liberties Association
Canadian Civil Liberties Association
Canadian Council for Refugees
Canadian Immigration Lawyers Association
Canadian Muslim Lawyers Association
Canadian Muslim Public Affairs Council
International Civil Liberties Monitoring Group

Key issues – Bill C-20

1. The Commission should be independent and adequately resourced

PRINCIPLE: The effectiveness of the Commission is undermined by the proposal for it to report to and be funded by the Minister responsible for both the RCMP and CBSA.

SUGGESTION: the Commission should be set up as an office of the Legislature, and its budget allocation should not be tied to any Ministry that directly or indirectly overseas the RCMP and/or CBSA.

2. Complainants should not be limited to impacted persons

PRINCIPLE: Ensure third parties can make complaints and representations in hearings, in light of the many barriers to making complaints faced by marginalized vulnerable people, especially people without status, including those who are being deported.

SUGGESTION: section 33(1) and 33(2) should be amended to specifically acknowledge the right of third parties to file a complaint: “Any individual or third party may …

SUGGESTION: remove section 38(1)(b) and 52(1)(b).

3. Complaints should not be limited to individual circumstances

PRINCIPLE: Provide for systemic and policy complaints, without affected named individuals, to address patterns of behavior or problematic policies and operations.

SUGGESTION: add section 33.1(1) and 33.1(2) to mirror the language of section 33(1) and 33(2) but specifically authorizing any individual or third party to file a systemic complaint.

SUGGESTION: remove reference to “trivial” in sections 38(1)(a) and 52(1)(a).

4. Lack of clarity on who is to assess the relevance and necessity of the information to be disclosed for an investigation, and lack of review mechanisms for disputes arising thereof.

PRINCIPLE: Ensure relevant information is recorded and stored, and can be independently accessed by the Commission, so that complaints can be meaningfully investigated.

SUGGESTION: provide a mechanism to adjudicate disputes of information that is “relevant and necessary.”

5. The Commission should investigate complaints instead of the RCMP and CBSA

PRINCIPLE: Given the systemic racism that has been acknowledged to plague both the RCMP and CBSA, leaving them to investigate themselves leads to an apprehension of bias by design and may exasperate existing problems.

SUGGESTION: the Commission should have sole/exclusive jurisdiction to investigate complaints.

6. In the alternative, the need to ensure effective investigation of complaints in a timely manner

PRINCIPLE: Oversight by the Commission must not be rendered meaningless by lengthy delays in the initial investigation of complaints by the CBSA and RCMP.

SUGGESTION: to have strict timelines for the CBSA/RCMP to acknowledge, investigate, and report on complaints.

7. The need for coordination, recourses during an investigation, and redress upon success

PRINCIPLE: Ensure coordination between the Commission and other complaints and review bodies, particularly in the handling of concerns related to national security, so that complaints are effectively resolved and are not rejected because of the mere existence of another oversight mechanism/procedure, especially where the other body declines to investigate.

PRINCIPLE: The Commission should be armed with necessary powers to address interim needs during an investigation and redress upon a successful complaint.

SUGGESTION: The Commission should be granted the following powers:

• • • To make binding recommendations on interim orders such as a stay of deportation;
    • To make binding recommendations to initiate or impose disciplinary measures or to lay charges for noncompliance with its enabling statute.

8. Curtailing access to the Federal Court

PRINCIPLE: The work of any administrative body should be subject to Judicial Review to ensure compliance with its enabling statute.

SUGGESTION: section 65 be amended to permit judicial review of final reports of the Commission.

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.

TAKE ACTION

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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

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