Unpacking and moving forward from an extradition system in a "state of disarray"
You're a Canadian citizen, and you're wanted for a crime abroad. You haven't been charged, yet your future hangs in the balance of a quasi-criminal process, where you hear arguments from the prosecution but your defence team is unable to submit evidence to clear your name. You're then sent to an unfamiliar country, away from your family and friends, to face an indeterminate length of jail time until the prosecution chooses to bring the case to court.
It might sound like a dystopian novel, but in fact, this is exactly what happened to former University of Ottawa sociology professor Hassan Diab.
Diab arrived back in Canada on Monday, Jan. 15 after a harrowing decade of uncertainty and injustice. When I first read the case in detail, I wondered how our extradition system could have failed a Canadian citizen to such an extreme degree.
However, the more I delved into this case, the more I realized that, in truth, anyone could be the next Hassan Diab. Under Canada's current extradition system, it really is that easy for our government to send you to a foreign country to face charges for which the country has little to no reliable evidence.
And that's why it's imperative to ask, in Diab's case and others, how on earth did this happen?
Understanding "the least fair Act on earth"
If you're wondering who coined the phrase above, I can't take credit. Gary Botting has been practicing as an extradition lawyer for years, and has written over 40 published works on the subject. He also refers to the 1999 Extradition Act as "a backwater of the Canadian legal system that rubber stamps requests, and leaves Canadians sold down the river by their own government."
According to Botting, what's important to understand about extradition is that the individual wanted for extradition will not face a trial in Canada, but a hearing, which he calls a "quasi-criminal process."
He emphasizes that while extradition hearings do fall under criminal law, they are not to be considered a full trial.
Peter Gose, chair of Sociology and Anthropology at Carleton University and member of the Justice for Hassan Diab Support Committee, says this condition was especially problematic in Diab's case.
"You're not allowed to introduce evidence, and that was particularly egregious in this case," Gose says, "because about a month into the extradition hearing, there was a separate request for Hassan to be fingerprinted ... so they took the prints and the RCMP compared them to the French samples that were left by the bomber. None of those fingerprints matched Hassan."
"So the French knew this, the department of the minister of justice knew this, the prosecution advocating for France through the Department of Justice, the judge knew it, and the defence knew it, everybody knew it," Gose recounts.
"But the French chose not to submit that exculpating evidence in the case. So it was just suppressed. Everybody knew he was innocent in this, but it just kind of chugged on."
It should be noted that although this evidence was not admissible, Botting says that evidence can be submitted by the defence so long as it speaks to the fairness of the hearing itself—not to the person's innocence.
At this point it might be tempting to ask, why not just have the trial in Canada, and avoid extradition until conviction? According to Robert Currie, a professor of law at Dalhousie University and specialist in transnational criminal law, efficiency is an essential part of a good extradition system—which we all have an interest in maintaining.
"Extradition is a really important part of the overall fight against global transnational crime," notes Currie. "You and I have an interest in our extradition proceedings being efficient and moving along quickly, because there are a lot of criminals who end up in Canada who should be sent back to face trial in other countries."
The process is governed by the 1999 Extradition Act, and its current interpretation comes from the 2006 Supreme Court decision United States of America v. Ferras.
"The idea in Ferras was that the Supreme Court said that we are in danger of the courts in Canada just becoming a rubber stamp," explains Currie.
"If the foreign country asks (for extradition) and they produce any old crap, and the judge doesn't have any power to allow any inquiry into how prudent their case is ... (The Supreme Court) said that can't be right. There has to be a way for the person sought to prove that the requesting state's evidence is really suspect."
However, a bifurcation quickly emerged in the interpretation of this decision between Ontario and British Columbia courts.
Ontario's interpretation, Currie says, "raised the bar so high that it's practically impossible for people to prove (their innocence)." Botting notes that "the Supreme Court stepped in eventually, and said Ontario was right and B.C. was wrong."
This led to what Currie characterizes as a situation the defence's chance to prove the prosecution's evidence as unreliable was "interpreted out of existence."
This situation has ultimately left defence teams unable to submit any evidence to prove a client's innocence, the presiding judge with minimal ability to stop extraditions when the case is weak, and citizens like Diab losing years of their life to nightmarish ordeals.
Reforming a broken extradition system
As Diab recalled at his first press conference back in Canada on Jan. 17 at the Amnesty International Canada headquarters, during extradition his "life was a series of waiting in cells."
With the gaps in the system so painfully brought to light in Diab's case, there are a lot of places we can start when it comes to reform.
As noted at the press conference, Gose and the Justice for Hassan Diab Support Committee will be requesting a public inquiry into the role of the Canadian government in this case, as well as a "thorough, public, Parliamentary review" of the act itself.
From a legal standpoint, Currie says that a "pressure valve" is needed to "let the pressure off a little bit on cases that are unusual or exceptional."
This would function in order to say, "yeah, normally our law should work this way, but in this case that will produce a terrible injustice, so we need to loosen the strings a little bit," he says. In practice, this would mean giving the wanted individual more space to challenge the prosecution's arguments.
In addition, Currie believes that the "extradition judge should have the power to have a little more robust approach to looking at the requesting state's case."
Botting also expressed that the first thing that has to change is the position of the judge.
"The judge has to be able to look at the overall case somewhat subjectively, more subjectively than he does now. I think now yes there is a way to do this to a certain extent, but it's so limited."
However, policy change around the role of the judge in extradition must be crafted carefully, as Currie says this opens up the issue of inefficiency, backlog, and ultimately needless use of taxpayer dollars.
"Another thing that has to change, and it should be easily changed, is the case having to be presumptively unreliable," says Botting. "The idea that anything the prosecutor says is going to be the evidence, is going to be brought forward by the foreign state, is presumed to be reliable."
Another element to consider in reform is the role intelligence plays in the extradition process. Roger Clark, former secretary of Amnesty International Canada and member of the Justice for Hassan Diab Support Committee, notes that there needs to be a balance between national security and fair process—which is easier said than done in cases involving terror suspects.
"Obviously, there is going to be information provided by intelligence services—that's the way the world works," he says. "The thing is that unless secret intelligence can be cross-examined, or challenged, or looked at at some stage, it doesn't even need to be a public process but it's got to be something other than simply it sits there and only the extraditing judge knows anything about it."
Another issue to consider is the fairness of extraditing Canadian citizens to countries where intelligence is admitted as a valid form of evidence. As Clark points out, intelligence is not admissible in Canadian courts—this is contrast with countries like France, where intelligence on Diab was reintroduced to his file post-extradition, although it was not allowed to be used in the Canadian hearing.
It is this mismatch of legal systems, as well as the fine line between fair hearing and full trial, that makes cautious policy reform so necessary as the discussion around the Extradition Act continues.
The politics of extradition
But policy change isn't always as simple as identifying the gaps. As noted by most of the experts I spoke with, political pressures could be a major force in determining how we use and reform the Extradition Act going forward.
Currie points out that awareness of the issues around extradition, although increasing with the Diab case, is still minimal in both academic and industry spheres. However, he says that among these tight circles the appetite is strong for reform.
"Certainly all of the defence lawyers that I've ever spoken to, that do extradition work, are interested in there being some reform," Currie says. "I've had conversations with judges as well who are kind of worried about it."
However, he characterizes Canada's federal government as "extremely hostile to changing our extradition law," and even wanting to make the policy "more amenable to making sure they're able to extradite as many people as they want to."
Clark also notes that political forces may be at work in foreign jurisdictions, which ultimately could have an impact on the treatment of Canadians like Diab.
"The French government, and Macron in particular, does not want to seem soft on terror," he says, "and that's also a reality of today's world that unfortunately can lead to some very rigid and sometimes repressive political positions."
In addition to this, Clark says that lobbying by powerful, right-wing Zionist groups in both Canada and France was instrumental in the push for Hassan's continued detention.
"That plays into this same fear, and unfortunately it translates into this determination to find somebody guilty at whatever cost. It doesn't matter if the person is actually innocent, we've got somebody, and it sort of seems to satisfy this longing for revenge that is not helpful in any shape or form in a judicial process."
Clark emphasizes that Canada is not excluded from that same sort of attitude, noting that Diab lost his job largely because of intervention from some of those same "extremist" Zionist groups in Canada.
Another consideration for public servants tasked with reform is the agreements we hold with other nations. Currie noted in particular that after speaking with Hassan's defence team and studying the case, it became apparent to him that "the French criminal justice system is politicized," and holds "really significant fairness problems, to the point where Justice Canada should be looking at our extradition arrangements with France's government."
Finding a way forward
Although the holes in Canada's extradition laws have been largely brought to light through Diab's case, there are still several hurdles obstructing a smooth ride to reform.
Although Diab is back in Canada, according to his lawyer Don Bayne, appeals are already in the works in France against the order of dismissal. This doesn't necessarily mean Diab will be extradited again but, Bayne says there's no guarantee he's home free either.
Aside from that, with a federal election coming up next year, who knows what type of government will be elected and what kind of stance they'll take on extradition?
The future of Canada's extradition laws isn't quite clear yet. But each expert I spoke with does believe that there is great potential for change in how we treat Canadian citizens wanted for extradition, and that change needs to happen sooner rather than later. As Botting says on our current system, "Canada is meant to be a model of justice, and we've sold out."
How many more years, jobs, friendships, family moments, and homes will be stolen from those like Hassan Diab, before the Canadian government is convinced to act?