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  February 16, 2011

Canadian Extradition And Secret Trials


Hassan Diab is a Canadian citizen facing extradition to France based on secret evidence. While his case comes to a close it may challenge the entire legal extradition system in Canada
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biography

Gary Botting is a Canadian lawyer specializing in Extradition law. He is also the author of four books on the topic, including Canadian Extradition Law Practice and Halsbury's Laws of Canada - Extradition and Mutual Legal Assistance in Criminal Matters. His full bio can be seen on his site.

Rania Tfaily is the wife of Hassan Diab, a Canadian citizen facing extradition to France based on secret intelligence. She is an assistant professor at Carleton University in Ottawa in the Department of Sociology and Anthropology.

Matthew Behrens is the coordinator of the Campaign to Stop Secret Trials. He is a frequent commentator and often writes for Rabble.ca



Lia Tarachansky reports on the case of Hassan Diab, a Canadian citizen who's been fighting extradition to France since 2007. The French prosecutors compiled a case against him based on secret intelligence said to be of German and Israeli sources. It alleges his involvement in a bombing that took place in Paris in 1980. He was arrested in 2008 and released in 2009 on strict bail conditions, including having to wear a self- financed GPS tracking device. The Canadian Extradition Act allows for the requesting country, in this case France, to submit nothing more than a summary of its evidence before sending Canadian citizens to face trial abroad. However, Diab's Record of the Case revealed exonerating and incomplete evidence. After a lengthy and historic legal battle, Diab's case will finally come to a decision in March when an Ontario Superior Court judge will rule whether the evidence presented by France is reliable. This decision could change Canadian extradition law altogether.


transcript

LIA TARACHANSKY, PRODUCER, TRNN: I'm Lia Tarachansky with The Real News in Ottawa, Canada. As the Ontario Superior Court inches closer towards a final decision in the extradition case of Hassan Diab, public pressure intensifies. Hassan Diab is a Canadian citizen and a former professor of sociology at the University of Ottawa. The French authorities requested Canada extradite him to France due to allegations he was involved in a 1980 bombing. Canada's extradition act allows the requesting country, in this case France, to present a record of the case, which is a summary of the evidence that doesn't require the use of sworn witnesses. Because of the allegations against Diab, which are largely based on secret evidence, he was arrested in late 2008, but released in 2009 with strict bail conditions. He is now waging a legal battle that might change Canadian extradition law altogether. On this cold Canadian day, supporters came out to yet another hearing as his court case comes to an end.

IDA HENDERSON, RETIRED FEDERAL PUBLIC SERVANT: Well, I think more Canadians should be really aware of this major flaw in our legal system and in the protection of our rights.

BENJAMIN SAIFER, PUBLIC SECTOR UNIONIST: If the evidence was really rock-solid and really put together a strong case against Dr. Hassan Diab, then I think the evidence could be cross-examined and would be there for his defense to challenge, would be there for the accused to see.

TARACHANSKY: On February 7, Hassan Diab's support committee held a panel discussion. Among the speakers was Rania Tfaily, his wife and an assistant professor at Carleton University in Otttawa. She describes what it would be like for someone to go through the case her husband is currently defending. She talks about how for a year he was followed by agents and then arrested and detained in solitary confinement.

RANIA TFAILY, WIFE OF HASSAN DIAB: You spend over four months in detention. After an unusual six-day hearing, bail hearing, along with the testimonies of five sureties, and character letters from numerous academics, you are released on bail under very strict conditions, which include that you can only leave your residence if accompanied by a surety, and you have to self-finance a GPS monitoring system, which costs around $2,000 per month.

TARACHANSKY: Also among the speakers was Matthew Behrens, the coordinator of the Campaign to Stop Secret Trials.

MATTHEW BEHRENS, COORDINATOR, CAMPAIGN TO STOP SECRET TRIALS: A couple of years ago, there was a report that was issued by something called the International Commission of Jurists, which is the leading judges on the planet. And this report, which came out in 2008, explored the use of so-called counter-terrorism measures and the effects that they have had on human rights and the human rights regime which was set up to prevent these kinds of crimes after the Second World War. And in addition to their many findings--the most disappointing of which for them was it's not just dictatorships that are taking advantage of the war on terror, it's in fact liberal democracies such as Canada, the UK, France, and the United States which have taken the lead in eroding, consciously, human rights protections.

TARACHANSKY: Gary Botting is a Canadian lawyer and legal expert on extradition. He is the author of several books on the issue, including Canadian Extradition Law Practice.

GARY BOTTING, LAWYER, AUTHOR: The Hassan Diab case is very unique in terms of the extradition process that has been followed so far. Usually extradition--an extradition hearing would take two days. Now, if the decision to allow the individual to call evidence is upheld, then things will begin to change. Then we'll have longer hearings. And right now the Hassan Diab case is almost--well, it stands alone among all the cases that I've heard in the past ten years, where the individual has been able to lead evidence and challenge the evidence in a major way. That's a big shift.

TARACHANSKY: In Diab's record of the case, it was revealed that the French prosecutor targeted him based on German and Israeli intelligence.

TFAILY: You later know that no one involved in your case knows the source or even the reliability of the intelligence against you, not the Crown prosecutors, not the Canadian judge, and not even the French investigators themselves, as they admit in one of the court documents.

TARACHANSKY: Beside the secret intelligence, the case hinges on a handwriting sample. However, the record of the case reveals that when the suspect's handwriting was compared, the comparison was made to handwriting that wasn't Hassan's. After a lengthy legal fight, Diab's lawyer was able to assemble a team of international experts in handwriting analysis, who concluded multiple times that Hassan's handwriting does not match the suspect's.

TFAILY: You also learn that the French investigators knew, more than a year ago, that your fingertip prints don't match those left by the suspect. Again, this was never disclosed to you or to the court.

~~~

TARACHANSKY: It seems like evidence is used here that wouldn't be accepted in a Canadian court.

BOTTING: Yeah, definitely that's the case. The legal and political environments are almost like two cogs in a wheel. First of all, he must go before a judge, who determines whether the allegations in the foreign country amount to an offense in the country that has requested to extradite him. So that's the first step. The other concentric circle, if you like, or cog, is the minister of justice makes the ultimate decision, the political decision, as to whether or not to actually extradite the individual. So judges in Canada have very little power. Now it's only a--almost a rubber-stamping at the judicial level, and then it goes to the minister of justice.

~~~

BEHRENS: And just to give you a sense of the extradition cases that come before the Canadian justice minister, in 1999, Queen's Bench Justice Steel wrote, quote, evidence at an extradition hearing should be accepted even if the judge feels it is manifestly unreliable, incomplete, false, misleading, contradictory of other evidence, or the judges feel the witness may have perjured themselves. So essentially you're being punished even if you're completely innocent of those charges. You can spend years in jail. You get to France, you get to Britain. And even if you do have a fair trial and you do win, how much of your life is gone?

~~~

BOTTING: Because Canada's a common-law country, we always send back people to face the music, back in the country they came from or where the offense is alleged to have been committed, whereas that's not necessarily reciprocated. Certainly, France does not reciprocate.

TARACHANSKY: Why would Canada do that?

BOTTING: Precisely. Why would Canada do that? We as lawyers have been asking that question for a long time. But Canada is in a position where it always wants to kowtow to larger or more established nations. And so it becomes a question of not will we jump, but how high will we jump, and how much do we have to bend over backwards to accommodate. In fact, never in the history of Canada have we prosecuted in Canada rather than sending people back to face prosecution in a foreign country. That's another huge hurdle that the Hassan Diab case can make, a huge advance this case could represent, if indeed Canada decides not to send him back to France.

~~~

TARACHANSKY: In March, the Ontario judge will decide whether the evidence in the case is reliable. If he decides it's not, Hassan Diab will be dismissed. However, according to Gary Botting, the attorney general will likely appeal the case all the way up to the Supreme Court.

End of Transcript

DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.



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