Open letter: Over 130 members of Canadian legal community call on Trudeau government to deny French extradition request in case of Hassan Diab

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


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

Co-signatories:

Sharry Aiken, Faculty of Law, Queen’s University, Toronto, Ontario

John Packer, Director of the Human Rights Research and Education Centre, University of Ottawa, Ottawa, Ontario

Richard Moon, Distinguished University Professor, University of Windsor, Toronto, Ontario

Ardi Imseis, Faculty of Law, Queen’s University, Ottawa, Ontario

Mohammad Fadel, Professor at the Faculty of Law, University of Toronto, Ontario

Faisal Bhabha, Osgoode Hall Law School, York University, Toronto, Ontario

Obiora Okafor, Professor, Toronto, Ontario

Mary Ann Higgs, Lawyer, Kingston, Ontario

Ashwini Vasanthakumar, Queen’s National Scholar & Associate Professor, Queen’s Law School, Kingston, Ontario

Vasanthi Venkatesh, Associate Professor, University of Windsor, Faculty of Law, Toronto, Ontario

Dania Majid, Arab Canadian Lawyers Association, Toronto, Ontario

Martha Jackman, Professor, Faculty of Law, University of Ottawa, Ottawa, Ontario

Colin Grey, Associate Professor, Queen’s University Faculty of Law, Toronto, Ontario

Eric Tucker, Emeritus Professor, Osgoode Hall Law School, York University, Toronto, Ontario

Jared Will, Lawyer, Toronto, Ontario

Reem Bahdi, Associate Professor, Windsor Law, University of Windor, Windsor, Ontario

Harini Sivalingam, Lawyer, Toronto, Ontario

Valerie Oosterveld, Professor, Faculty of Law, Western University, London, Ontario

Dr. Gary Botting, Author, Canadian Extradition Law Practice, Hope, British Columbia

Denise Reaume, Professor Emerita, University of Toronto, Toronto, Ontario

Maseeh Haseeb, PhD candidate in the Faculty of Law, Queens University, Ottawa, Ontario

Aditya Rao, Lawyer, Ottawa, Ontario

François Crépeau, Professor of Public International Law, Faculty of Law, McGill University, Montreal, Quebec

André Capretti, Lawyer, Montréal, Québec

Irina Ceric, Assistant Professor, University of Windsor Faculty of Law, Toronto, Ontario

Michael Byers, Professor & Canada Research Chair in Global Politics and International Law, University of British Columbia, Vancouver, British Columbia

Anna S, Lawyer, London, Ontario

Pearl Eliadis, Lawyer & Associate Professor (professional), Max Bell School of Public Policy, McGill University, Montreal, Quebec

Professor Errol Mendes, Faculty of Law, University of Ottawa, Ottawa, Ontario

Dr. Adelina Iftene, Associate Professor, Schulich School of Law, Dalhousie University, Halifax, Nova Scotia

Lisa Taylor, JD, LLM – academic, Halifax, Nova Scotia

Robin Parker, Lawyer, Toronto, Ontario

Joseph Rikhof, Crimes against Humanity and War Crimes Section, Justice Canada (retired); Adjunct Professor, Common Law Faculty, University of Ottawa, Ottawa, Ontario

Joanna Harrington, Professor, Faculty of Law, University of Alberta Edmonton, Alberta

Professor D.A. Rollie Thompson KC, Professor Emeritus of Law, Schulich School of Law, Dalhousie University, Halifax, Nova Scotia

Mitchell Goldberg, Lawyer, Montreal, Quebec

Hilary Young, Professor of Law, Faculty of Law, University of New Brunswick, Fredericton, New Brunswick

David Fraser, Lawyer, Halifax, Nova Scotia

Emilie Taman, Lawyer, Ottawa, Ontario

Katie Sykes, Faculty of Law, Thompson Rivers University, Kamloops, British Columbia

John D Gregory, retired lawyer, Toronto, Ontario

Hon. Marilou McPhedran, Independent Senator – Manitoba, Ottawa, Ontario

Michael Lynk, Former United Nations Human Rights Special Rapporteur, London, Ontario

Charis Kamphuis, Associate Professor, Faculty of Law, Thompson Rivers University, Kamloops, British Columbia

Shelley Hounsell-Gray, K.C., Lawyer, Bedford, Nova Scotia

Christopher Waters, Professor, Faculty of Law, University of Windsor, Windsor, Ontario

Nicole O’Byrne, Associate Professor Faculty of Law University of New Brunswick, Fredericton New Brunswick

Raphael Vagliano, International human rights lawyer, Halifax, Nova Scotia

Colton Fehr, Assistant Professor, Faculty of Law, Thompson Rivers University, Kamloops, British Columbia

Nicholas Pope, Human Rights Lawyer, Hameed Law, Ottawa, Ontario

Jamie Liew, Full Professor, University of Ottawa, Faculty of Law, Ottawa, Ontario

Jolene Hansell, Criminal Lawyer and Part-Time Professor at the University of Ottawa, Ottawa, Ontario

Rabiat Akande, Assistant Professor, Osgoode Hall Law School, Vaughan, Ontario

A. Wayne MacKay, CM, KC, Professor Emeritus of Law, Schulich School of Law, Dalhousie University, Halifax, Nova Scotia

Chantal Tie, University of Ottawa, part-time Professor, Immigration, Wakefield, Quebec

Hugh Kindred, Professor Emeritus, Schulich School of Law, Dalhousie University, Halifax, Nova Scotia

Donna Davis, Lawyer, Halifax, Nova Scotia

Benjamin Perryman, Assistant Professor, University of New Brunswick Faculty of Law, Fredericton, New Brunswick

Khalid M. Elgazzar, Lawyer, Ottawa, Ontario

Seth Weinstein, Lawyer, Author of Prosecuting and Defending Extradition Cases, Toronto, Ontario

Geneviève Paul, International human rights jurist, Montréal, Québec

Leilani Farha, Global Director, The Shift, Ottawa, Ontario

Paul A. Falvo, Legal counsel, Yellowknife, Northwest Territories

Ammad Anwar, Partner, Anwar & Riou Law Office, Unity, Saskatchewan

Syed Rizvi, Affinity Law PC, Milton, Ontario

Jouman El-Asmar, Lawyer, EL-ASMAR LEGAL, Edmonton, Alberta

Barbara Jackman, Lawyer, Toronto, Ontario

Sara Wharton, Associate Professor, University of Windsor, Faculty of Law, Windsor, Ontario

Penelope Simons, Professor and Gordon F.Henderson Chair in Human Rights, Faculty of Law, University of Ottawa, Ottawa, Ontario

Amanda Ghahremani, International criminal lawyer, Toronto, Ontario

Naiomi Metallic, Associate Professor, Schulich School of Law at Dalhousie University, Halifax, Nova Scotia

Gregory Willoughby, Immigration & Refugee Lawyer, London, Ontario

Tashi Alford-Duguid, Lawyer, Toronto, Ontario

Peggy Malpass, Retired lawyer, Adjunct Professor of Law Ottawa U, Toronto, Ontario

Janet van der Vink, Immigration lawyer, Ottawa, Ontario

Érick Sullivan, Lawyer, Canadian Partnership for International Justice, Québec, Québec

Mark Kersten , Associate Professor, Criminology & Criminal Justice, University of the Fraser Valley, Vancouver, British Columbia

Lee Seshagiri, Managing Lawyer, Appeals Office – Nova Scotia Legal Aid, Halifax, Nova Scotia

Eric V. Gottardi, K.C., Lawyer, Peck and Company, Vancouver, British Columbia

Frank Addario, Addario Law Group, Toronto, Ontario

Professor Maureen Duffy, Associate Professor, University of Calgary Faculty of Law, Calgary, Alberta

Meghan McDermott , Lawyer, BC Civil Liberties Association, Vancouver, British Columbia

David VanderZwaag , Professor of Law, Schulich School of Law, Dalhousie University, Halifax, Nova Scotia

Sherif M. Foda, Foda Law, Toronto, Ontario

Brock Martland, KC, Criminal Barrister, Martland & Saulnier, Vancouver, British Columbia

Mehrak Hazaveh, Lawyer, Ottawa, Ontario

Philip Girard, Professor, Osgoode Hall Law School, York University, Toronto, Ontario

Sarah Lindsay MacLeod, Lawyer, Burchell Wickwire Bryson LLP, Halifax, Nova Scotia

Gib van Ert, Lawyer, Ottawa, Ontario

Arash Ghiassi, Lawyer, Toronto, Ontario

Shakir Rahim, Lawyer, Toronto, Ontario

Laïla Demirdache, Lawyer, Ottawa, Ontario

Jessica Chandrashekar, Lawyer, Toronto, Ontario

Maeve McMahon, Associate Professor, Law and Legal Studies, Carleton University (retired), Ottawa, Ontario

Hon. Elizabeth Roscoe, Retired Justice, Nova Scotia Court of Appeal, Upper Malagash, Nova Scotia

Sarah Douglas, Lawyer, Halifax, Nova Scotia

Yazan Matarieh, Lawyer, Halifax, Nova Scotia

Udani Perera , Perera Legal Group, Lawyer, Calgary, Alberta

Audrey Macklin, Professor, Faculty of Law and Centre for Criminology and Sociolegal Studies, University of Toronto, Toronto, Ontario

Sharmin L. Rahman, Lawyer, BDO Law LLP, Toronto, Ontario

Evan Fox-Decent, Professor of Law and Canada Research Chair, McGill University, Faculty of Law, Montreal, Quebec

Mariana Valverde, Professor Emeritus, Centre for Criminology and Sociolegal Studies, University of Toronto, Toronto, Ontario

Paul Champ, Human Rights Lawyer, Champ Law, Ottawa, Ontario

Lex Gill, Litigator and Course Lecturer (McGill University), Montreal, Québec

Yavar Hameed, Human Rights Lawyer, Hameed Law, Ottawa, Ontario

Lisa Dufraimont, Professor, Osgoode Hall Law School, York University, Toronto, Ontario

Stepan Wood, Professor and Canada Research Chair in Law, Society & Sustainability, Allard School of Law, University of British Columbia, Vancouver, British Columbia

Jonathan Shapiro, Senior Instructor (Associate Professor), Schulich School of Law at Dalhousie University, Halifax, Nova Scotia

Lisa Kerr, Associate Professor, Queen’s University, Faculty of Law, Kingston, Ontario

Ibrahim Danial, lawyer; Director, Downtown (Toronto) Muslim Professional Network, Mississauga, Ontario

Janet van der Vink, Immigration lawyer, Ottawa, Ontario

François Larocque, Professeur titulaire, Faculté de droit, Section de common law, Université d’Ottawa, Ottawa, Ontario

Mary Jane Mossman, Professor Emerita, Osgoode Hall Law School, Toronto, Ontario

Doris Buss, Professor of Law, Carleton University, Ottawa, Ontario

Jillian Rogin, Assistant Professor and lawyer, Faculty of Law, University of Windsor, Hamilton, Ontario

Stephen Tasson, Department of Law and Legal Studies, Carleton University, Ottawa, Ontario

Natasha Bakht, Professor, Shirley Greenberg Chair for Women and the Legal Profession, University of Ottawa, Ottawa, Ontario

Harsha Walia, Author, Vancouver, British Columbia

Craig Scott, Professor of Law & Associate Dean (Academic), Osgoode Hall Law School of York University, Toronto, Toronto, Ontario

Fannie Lafontaine, Canada Research Chair on International Criminal Justice and Human Rights, Université Laval, Faculté de droit, Québec, Québec

Pantea Jafari, Jafari Law, Chair of the CBA Immigration Section’s Anti-Racism Committee, Toronto, Ontario

Katie Joyce, Lawyer, Halifax, Nova Scotia

Amy Brubacher, Lawyer, Don Valley Community Legal Services, Toronto, Ontario

John Liss, lawyer, Toronto, Ontario

Talia Joundi, Lawyer, Toronto, Ontario

Amanda Aziz, Lawyer, Vancouver, British Columbia

Dimitri Lascaris, Lawyer and Journalist, President of Green Left Canada, Montreal, Quebec

Melanie Adrian, Associate Professor, Department of Law and Legal Studies, Carleton University, Ottawa, Ontario

Janne Burton, Lawyer, Retired, Toronto, Ontario