Up to Canada to end 15 years of injustice for Hassan Diab | Alex Neve and Robert Currie

By Alex Neve and Robert Currie

Law360 Canada (April 25, 2023, 9:57 AM EDT) --
Alex Neve
Alex Neve
Robert Currie
Robert Currie
Writing in Law360 Canada on March 30, on the eve of an in absentia trial opening in France against Dr. Hassan Diab, a Canadian academic accused of carrying out a horrific 1980 terrorist bombing outside a Parisian synagogue, we wrote of the many surreal Kafkaesque layers to the case. We highlighted that both the French and Canadian governments had the ability and responsibility to press for this labyrinth of injustice to end.

We wrote with hope that justice would prevail. At the same time, unfortunately, we knew there was a very likely prospect it would not. That is because, at almost every turn over the past 15 years, justice has been relegated to the back seat. Sadly, that has once again been the outcome. In a brief ruling delivered at 5:30 p.m. on April 21, just one day after the three-week trial concluded, Hassan Diab was found guilty and sentenced to a life prison term.

It defies belief.

There is no new incriminating evidence that has come to light since Ontario Superior Court Justice Robert Maranger’s 2011 extradition ruling in which he concluded that, “the case presented by the Republic of France against Mr. Diab is a weak case; the prospects of conviction in the context of a fair trial, seem unlikely.” There is no new incriminating evidence that has surfaced since January 2018 when the two French judges tasked with digging into the case concluded, after three years of investigating, that there was no evidence to justify even laying charges and proceeding with a trial.

Quite the contrary, over those years, the evidence against Diab — particularly the handwriting analysis relied upon by French prosecutors — was convincingly further discredited, and the French investigatory judges also compiled evidence corroborating his consistent assertion that he had been writing his university exams in Lebanon at the time of the bombing.

But 42 years of a complete failure of accountability for this calculatingly cruel terrorist crime has been such an indictment of the French justice system. A betrayal of justice for families and survivors. The pressure and expectations for there to be a conviction, seemingly of anyone, has become an irresistible force. And on April 21 that did indeed carry the day.

What next?

The very likely possibility is that French authorities will make a second request of Canada for Diab’s extradition. The first time, despite Justice Maranger’s evident misgivings, the extradition went ahead after a six-year legal battle, because the threshold set under Canada’s Extradition Act is so unbelievably low. Justice was clearly not served. 

When Diab was eventually released after three years of solitary confinement in France and returned to his family in Canada, Prime Minister Justin Trudeau noted, in hindsight, that what had happened to him should never have happened and should never happen again.

Indeed, it should never happen again, which will necessitate saying no to France. This time Canada can and must get it right.

That may seem a big ask. An extradition request coming from a close ally, certainly seen as a country with a strong justice system and a rule of law tradition, will not be easy to decline. An extradition request, this time, based on a court conviction; how could Canada possibly say no?

First, as a reality check, it is worth noting that France has recently said no to Canada in response to a very compelling extradition request. The extradition of a retired French priest, Johannes Rivoire, was sought in connection with credible allegations that he had sexually abused Inuit children in Nunavut in the 1960s and 1970s. The request was denied for two reasons, one being that France (unlike Canada) does not extradite its citizens, as a matter of law. The irony of those differences in the positions of France and Canada about extraditing their own nationals is glaringly stark when one compares the Rivoire and Diab cases.  

The point being, though, that it is absolutely not exceptional to imagine an extradition request being refused in the context of the relationship between Canada and France.

Second, more crucially, extradition should be refused because those are the dictates of justice. It must be refused quite simply because basic fairness demands it.

If and when an extradition request is received it will be up to Minister of Justice David Lametti to decide how to proceed. The first decision he will be faced with is whether he is prepared to initiate the process that would lead to a provisional arrest warrant for  Diab under s. 12 of the Extradition Act and, very significantly, the issuance of an “Authority to Proceed” with the extradition process under s. 15 of the Act.

Notably, both of those powers are framed as steps that the minister “may” take; they are discretionary. Surely the overriding consideration for the minister in deciding how to exercise that discretion must be to do what justice requires. It is not about political considerations in Canada’s relationship with France. The only question the minister should assess is: what course of action will best serve justice?

The answer to that question is abundantly clear. Justice would not be served by launching extradition proceedings on the basis of a blatantly unsound, wrongful conviction. Looking down the road, it is easy to predict that our courts might bar extradition, potentially because Canada would be violating its own human rights obligations by surrendering in such unfair circumstances. But proceedings would no doubt once again be protracted and be a source of several more years of torment for Diab, his wife and their two young children. Even if this time, despite the stunningly low bar in Canadian extradition law, the courts could be counted on to eventually reject the extradition, the toll on Diab, and the misuse of the Canadian courts would be unconscionable. And it is entirely avoidable.

The very purpose of extradition is to offer a path to justice. In Hassan Diab’s case that path to justice will mean saying no to extradition.

Alex Neve is a senior fellow in the Graduate School of Public and International Affairs at the University of Ottawa; Robert J. Currie is distinguished research professor at the Schulich School of Law at Dalhousie University.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. 

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.