Independent Review of the Extradition of Dr. Hassan Diab

Overview

Early in the evening of October 3, 1980, a bomb exploded outside a synagogue at 24 Rue Copernic in Paris, France. Four people were killed, more than 40 more were wounded – many very seriously – and the surrounding buildings were severely damaged. This was an antisemitic, terrorist act. The bomb was apparently timed to go off as worshippers celebrating the holiday of Simchat Torah would be leaving the synagogue. It was only because the services ran late that the devastation and loss of life was not greater.

The extradition process unfolded over the course of several years.

Almost 20 years later – in 1999 – French authorities received certain intelligence information that started to point to Hassan Diab, originally of Beirut, as a possible suspect. However, it was not until 2008 – 28 years after the bombing – that France began working with Canadian authorities to assemble a record to support an extradition request against Dr. Diab, who was then age 55. At that time, Dr. Diab was a Canadian citizen living in the Ottawa area teaching sociology at two Ottawa area universities. He was married to Rania Tfaily and they had one child.

The extradition process unfolded over the course of several years. In November 2008, France made its request for extradition. On June 6, 2011, after a protracted and hard- fought extradition hearing, the Honourable Justice Robert Maranger, of the Ontario Superior Court of Justice ordered Dr. Diab’s committal. On April 4, 2012, after considering extensive submissions by Dr. Diab’s counsel arguing that his surrender would be unjust, the Minister of Justice ordered Dr. Diab’s surrender to France. On May 15, 2014, following a full hearing and after reserving its decision, the Court of Appeal for Ontario dismissed both Dr. Diab’s appeal from committal and his application for judicial review of the Minister’s decision. Leave to appeal to the Supreme Court of Canada was refused and, on November 14, 2014, Dr. Diab was surrendered to France.

In its decision dismissing Dr. Diab’s appeal, the Court of Appeal reasonably concluded that the record before it “clearly demonstrate[d]” that, if extradited, Dr. Diab would not “languish in prison” without trialFootnote 1 Unfortunately, Dr. Diab ultimately spent three and a quarter years in custody in France before he was freed by the investigating magistrates on January 12, 2018. While he was in prison, Dr. Diab missed the birth of his youngest child as well as several birthdays of both his young children.

The time Dr. Diab spent in lengthy, difficult pre-trial custody in France raised many questions about the expectations Canada had prior to sending him to France.

France’s decision to release Dr. Diab is not publicly available. Some reports in the media suggest that the investigating magistrates determined there was insufficient evidence to refer the matter to trial; other reports indicate that the investigating magistrates found “consistent evidence” that Dr. Diab had been in Lebanon at the time of the bombing. I have not seen the decision and so cannot say with any certainty why Dr. Diab’s matter was not referred to trial. The French prosecutors appealed the decision discharging Dr. Diab. At the time of writing this report, there is no final French judicial decision.

With the assistance of officials from Global Affairs Canada, on January 15, 2018, Dr. Diab returned to Canada, his family and freedom.

The Scope of the Review

Dr. Diab’s return sparked widespread public debate about his treatment and his experiences with Canada’s extradition processes. If nothing else, the time Dr. Diab spent in lengthy, difficult pre-trial custody in France raised many questions about the expectations Canada had prior to sending him to France.

Dr. Diab, his supporters, and a number of civil liberties and human rights organizations across Canada raised questions, including, about whether:

In response to these public concerns, the former Attorney General, the Honourable Jody Wilson-Raybould, commissioned an external review (for the full terms of reference, see Appendix A).

In brief, my instructions were as follows:

You are to conduct your external review independently of any direction from the Government of Canada and to form your own assessments and conclusions respecting the matters that are the subject of your external review.

Note: the International Assistance Group (IAG) is a team that operates within the Department of Justice. In Dr. Diab’s case, different IAG counsel played different roles throughout the extradition proceedings. Some provided advice to France in forming its extradition request and some acted on behalf of France at the extradition committal hearing. Others provided advice to the Minister in relation to the issue of surrender.

Dr. Diab, his counsel, his supporters and others raised many areas of concern. Some pertained to the unusual circumstances of this matter while others focused on the Extradition Act. To be clear, my mandate does not include examining the Extradition Act at large. However, to the extent that Dr. Diab’s experience implicated the Act, I discuss it in this report. When I do so, it is not my intent to exceed my mandate. My emphasis is on responding to the terms of reference and making suggestions for improvement.

The Review Process

To fulfill my mandate, I spoke with many individuals, including those directly involved in Dr. Diab’s extradition as well as those able to provide background information and a broader perspective on Canada’s extradition system. I am grateful to all those who identified issues and gave generously of their time to meet with me and respond to my inquiries.

The Government of Canada offered complete access to relevant personnel and to documents. As part of the review, I conducted extensive interviews with Department of Justice (DOJ) counsel, managers, decision makers, staff and policy advisors, and I thoroughly reviewed relevant correspondence and the voluminous documentary record compiled for court and for all other aspects of processing France’s request for extradition.

I was able to speak with personnel from the Royal Canadian Mounted Police (RCMP) and officials with Global Affairs Canada. I corresponded with interveners who supported Dr. Diab in court proceedings and beyond, including Amnesty International and the British Columbia Civil Liberties Association. I also consulted with academics.

France cooperated by offering the review access to justice officials who provided information about the workings of the French justice system, including how extradition requests are handled before making a request of a foreign country. However, one significant constraint is that I have not had access to any of the French courts’ decisions or orders. I understand that all proceedings prior to trial are confidential in France, although brief accounts of Dr. Diab’s journey before the French courts made their way into the media. Under freedom of information legislation, records relating to Dr. Diab’s contact with Canadian consular staff while he was detained in France were released to a Canadian national newspaper, but Dr. Diab did not consent to my reviewing that material. Again, brief accounts of such records made it into the media.

Both the terms of reference and common sense would drive me to hear from Dr. Diab, members of his family and his talented, knowledgeable legal counsel. I would have liked nothing more.

Despite my expressed desire to hear directly from Dr. Diab and his lawyers, Dr. Diab – as is his right – decided he would prefer not to meet or contribute. He and his supporters, including various human rights and civil liberties organizations, expressed the view that a review was an inadequate substitute for a royal commission or public inquiry.

Although I was not able to speak directly to Dr. Diab or his lawyers, I have worked to understand his perspective. I have paid particular attention to his position as expressed thoroughly and forcefully in court, to the Minister and to the media.

Summary of Findings

Dr. Diab was arrested in Canada, at the request of France, in November 2008. Six years later, in November 2014, following complicated and protracted extradition proceedings, he was surrendered to France. Throughout the extradition proceedings in Canada, Dr. Diab was ably represented by counsel, Donald Bayne, and his talented and dedicated co-counsel. France was equally well-represented by DOJ counsel, Claude LeFrançois who was joined at different points by Matthew Williams and Jeffrey Johnston – all members of the IAG and experienced litigators.

Was the law followed? Were IAG counsel’s approaches appropriate?

Yes.

Having reviewed the lengthy and complex history of this case, I have concluded that the Department of Justice and its lawyers in the International Assistance Group followed the law in the conduct of Dr. Diab’s extradition to France. IAG counsel acted in accordance both with the law and with the practices of the DOJ.

IAG counsel advanced the case for extradition ethically and with skill and considerable drive. At each stage of the proceedings, counsel for Dr. Diab provided a vigourous, thoughtful and thorough defence.

The committal hearing was lengthy and complex. The Honourable Justice Maranger of the Ontario Superior Court of Justice provided careful reasons for ordering committal, which were responsive to the issues raised by the parties. The Minister, after receiving and considering Mr. Bayne’s full and powerful submissions in opposition, gave lengthy reasons for ordering surrender. The Court of Appeal addressed each of the grounds advanced by Dr. Diab and the intervenors and, after reserving its decision, dismissed Dr. Diab’s appeal against committal for extradition and his application for judicial review of the Minister’s decision to order surrender in detailed reasons. An application for leave to further appeal to the Supreme Court was denied.

Although Dr. Diab’s extradition and long detention in France and his subsequent return to Canada without facing trial in France was troubling, it was not – as some have suggested – the product of unethical or inappropriate conduct on the part of IAG lawyers.

Although Dr. Diab’s extradition and long detention in France and his subsequent return to Canada without facing trial in France was troubling, it was not – as some have suggested – the product of unethical or inappropriate conduct on the part of IAG lawyers. To the contrary, IAG counsel who worked on Dr. Diab’s extradition are experts in their field who are dedicated to their task and who acted in accordance with their professional and ethical obligations.

Are there opportunities for improvement?

Yes.

Although the law was followed, Dr. Diab and his supporters, as well as human rights and civil liberties groups, have raised legitimate questions that are important not just to Dr. Diab, but to all Canadians. What can we learn from his case?

The world of extradition is poorly understood and information about how Canada’s extradition system works is difficult to access.

Chief among the lessons I learned conducting this review is that the world of extradition is poorly understood and information about how Canada’s extradition system works is difficult to access. An extradition hearing is not a trial. Extradition proceedings are meant to be fair but expeditious. However, given the complexity of the issues related to international cooperation to fight crime and the importance of adequately protecting the liberty interests of persons, like Dr. Diab, sought for extradition, it is extremely challenging for the extradition process to meet its goal to be expeditious and efficient.

Based on my review of this case, I make two broad sets of recommendations: one designed to make Canada’s extradition process more transparent – for the public and for individuals personally caught up in extradition proceedings; and the other designed to promote both fairness and efficiency in extradition proceedings.

My suggestions are not intended to be criticisms. They are ideas for exploration, consideration and consultation. They are intended to spark more discussion about how to improve Canada’s extradition process.

How the Report is Organized

My report is organized as follows:

Part A briefly summarizes the law relating to extradition in Canada. Recent high- profile extradition cases have resulted in more public attention on this area of law. My strong sense, however, is that extradition law is generally not well understood by the public. My summary cannot entirely remedy that concern; however, I hope my overview will help put what happened in this case in context.

Part B sets out in detail the chronology of the lengthy extradition proceedings in Dr. Diab’s case. I review the essential facts at each stage of the proceedings, describing the approach of IAG counsel and summarizing the judicial and ministerial decisions that ultimately resulted in Dr. Diab’s extradition to France. Throughout Parts A and B of the report, I highlight issues of concern and potential areas for improvement.

Part C is my analysis, response and conclusions in respect of the three areas identified in the terms of reference. I expand on the potential concerns and areas for improvement identified in Parts A and B and make recommendations.

The Appendices include the terms of reference and press release (Appendix A), a timeline (Appendix B) and a summary of the recommendations (Appendix C).