Hassan Diab is greeted by his family upon his return last month to Canada.
The request was related to a terrorist attack on a Paris synagogue in 1980 that killed four people and injured scores of others. After a lengthy court hearing and discretionary ministerial approval, all of which were upheld on appeal, Diab was extradited to France in November 2014.
The Diab case attracted significant public attention as it weaved its way through the Canadian extradition process. This public interest was based on the apparent solving of a high profile historical terrorist attack, as well as the details of the evidence that were being relied on to make the case against Diab. At the time there were also issues raised about whether the decision-making procedure under Canada's Extradition Act was appropriate to deal with this kind of terrorism case. With Diab's return to Canada without the prosecution that was the purpose of the extradition request, these procedural issues have resurfaced, including with demands for a public inquiry into the case.
To appreciate why this kind of a review may be appropriate, it is necessary to review the evidence that was presented in the case and why, despite clear court-recognized deficiencies, Diab was extradited to France in the first place.
French authorities blamed the Paris synagogue attack on the terrorist group Popular Front for the Liberation of Palestine (PFLP). The case remained dormant until 2007, when German authorities revealed that they had discovered a PFLP membership list which referenced Diab as the leader of the Paris attack. French authorities then revealed that they had other evidence – including photographs and suspect sketches from the scene, handwriting believed to belong to the leader of the attack, and links to his passport.
The allegations against Diab were reported in the French media in October 2007. Diab, then a Canadian citizen and sociology professor at Ottawa University, denied the claims and offered to be interviewed by French officials if it happened in Canada. The French declined, and Diab was arrested and detained by the RCMP in November 2008 pursuant to a formal extradition request by France on multiple murder and attempted murder charges.
Diab's personal history did not seem to fit the expected profile of a terrorist. A Shia Muslim born in Lebanon, he obtained a bachelor's degree from Beirut University in 1982. He emigrated to the United States in 1987, obtaining a master's degree and Ph.D. in Sociology from Syracuse University in 1992 and 1995 respectively. Diab reportedly obtained Canadian citizenship later in the 1990s and reportedly undertook teaching positions in Lebanon and the UAE. He moved to Ottawa to assume his teaching position in 2006. At his initial bail hearing, Diab testified that, following the French media report of his involvement in the 1980 terrorist attack and before his arrest in 2008, he believed he was being followed and reported that to the Ottawa police without result.
There were questions from the outset about the sufficiency and reliability of the French evidence against Diab. Under Canada's Extradition Act, however, the Canadian prosecutor did not present the actual evidence to the court and instead produced a summary of what they were advised would be presented at trial in France. Additionally, the evidentiary standard to approve extradition was not proof beyond a reasonable doubt as required at trial. Instead, it is a much lower standard that a properly instructed jury could reasonably return a verdict of guilty.
In June 2011, Justice Robert Maranger approved Diab's extradition but noted the low legal standard that required his extradition order and specifically commented that the evidence was "...weak, convoluted and confusing" and would likely be too weak to convict Diab if he were tried in Canada.
The next step required the justice minister's approval, which came in April 2012. Diab appealed both decisions. The Ontario Court of Appeal issued a detailed ruling in 2014 upholding the extradition orders while confirming the evidentiary and systemic concerns. The Supreme Court of Canada refused to hear a further appeal, and in November 2014, Diab was extradited to France.
The French investigation collapsed while Diab was detained over the next three years. He was ordered released on bail eight separate times but those were all overturned on the basis of him being a flight risk. Finally, a French judge dismissed the case noting that the supposed intelligence about Diab's PFLP role was unsourced, there was no DNA or photo link evidence, and the supposed handwriting matches with Diab were completely unreliable. The judge also cited further investigative evidence that confirmed Diab's alibi that he was in school in Beirut at the time of the attacks and that his passport had been stolen as he claimed. As a result, Diab was allowed to leave France and return to Canada.
Diab and his lawyer have called for a public inquiry, not only into the facts of his case, but also the existing extradition process. This kind of review makes sense and should include whether removal is for prosecution and not investigation; allowing judges to require direct evidence from the requesting state; clarifying the right of the accused to present evidence; reviewing the evidentiary basis for extradition and the ministerial discretion to deny extradition.
In today's world of international crime and terrorism, investigative cooperation among countries is critical. As such, however awkward it may be, it's time to learn from this experience and move forward.
Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations for Investigative Project on Terrorism and as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.