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Justice for Hassan Diab

Chantal Sundaram

November 26, 2012

In yet another travesty of justice for communities of Muslim and Arabic origin in Canada, Dr. Hassan Diab, an Ottawa professor, is fighting extradition to France for a crime he didn’t commit.
In June 2011, a Canadian judge committed Diab to extradition in connection with the bombing of a Paris synagogue in 1980. The entire case was based on handwriting analysis that the judge himself and several reknowned graphologists have described as suspect. And this despite the fact that Dr. Diab’s fingerprints, palm prints, and other physical characteristics do not match those of the perpetrator, whose fingerprints were found on both the writing samples and a car containing explosives.
In April 2012 an order was signed surrendering Dr. Hassan Diab to France, despite new information from French officials stating that Dr. Diab is only wanted for questioning, and Canada’s Extradition Act does not allow the Justice Minister to surrender Canadian citizens to other countries for mere questioning without trial.
If extradited, Diab will face severe limitations on the ability of his defence to challenge the handwriting analysis and the use of unsourced secret intelligence that may be the product of torture.
France’s willingness to use information derived from torture to prosecute terrorism-related cases has been documented by Human Rights Watch in a July 2008 report: (“Preempting Justice: Counterterrorism Laws and Procedures in France”).
But just as importantly, the Diab case has exposed the fundamental injustices of Canadian extradition law: Canada can hand people over to other countries based on low standards of evidence that would never be accepted in a Canadian court. And those handed over could face sentences many times greater than they would in Canada.
Canadian extradition law used to be among the most stringent in the world, with a high standard of evidence based on sworn statements under oath by actual witnesses of a crime. This changed in 1999, with Canada’s New Extradition Act. The Canadian state’s law and order agenda goes back before Harper to the Liberals’ introduction of this new law and the aggressive fights by the Crown to enforce it since then in the courts. But the discretion the new law transferred to the Minister of Justice at the expense of a shrunken role for the courts fell into waiting hands with the advent of 9/11.
The courts can challenge the evidence of the state requesting extradition, but the defence must meet the test of “manifest unreliability.”  The bar on this test has risen higher and higher due to successful challenges by the Crown, and the Diab case introduces a new challenge to this growing injustice, given its foundation on spurious handwriting evidence.
The tragedy is that the narrow reading of “manifest reliability” in the courts has trapped Diab in a web that Justices feel obliged to follow. But history shows that movements of support can influence how the courts interpret the law, particularly when adjudicators already view the interpretations before them as “manifestly” unjust.
Due to the demanding nature of Canada’s foreign relations, particularly in Harperland, there is a high degree of deference granted to the Minister of Justice over the courts in extradition law, which can only truly intervene in an extradition when it would “shock the conscience” of the Canadian public. Examples would be instances when extradition would lead to the death penalty or life in prison (which could occur in the US as much as anywhere else).
Hassan Diab’s case demonstrates the blurry line between extradition law and rendition, like the extraordinary rendition that led to the ordeal faced by Maher Arar, an ordeal for which the Canadian government has been forced to compensate. Right now, the injustices in our legal system make people of Muslim or Arab origin most vulnerable. But they make all of us suspect in unimaginable ways that could play out badly for anyone in Canada in the right (or wrong) circumstances.
Diab is appealing both the extradition judge’s committal order and the Justice Minister’s surrender order, but in the meantime he must wear a GPS monitor for which he himself must pay $2,000 per month.
To beat this added injustice, the “Hundred for Hassan” campaign was launched for one hundred people of conscience to contribute $20 a month to cover the cost of Diab’s GPS monitor. To join the campaign, send an email to diabsupport@gmail.com indicating how much you wish to pledge monthly, for how many months, and whether you would like to add your name to a statement of support. For more information about the case and support campaign: http://www.justiceforhassandiab.org.

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